Citation Nr: 21068720 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 13-22 878 DATE: November 12, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) is dismissed. Entitlement to an initial compensable rating for right ear hearing loss is denied. Entitlement to a rating in excess of 10 percent, prior to January 26, 2018, and in excess of 40 percent, thereafter, for residuals of a left thigh stab wound is denied. Entitlement to an initial compensable rating for a left thigh superficial scar (left thigh scar) is denied. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. In August 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that a withdrawal of the appeal for the claim for entitlement to TDIU was requested. 2. Throughout the course of the appeal, the Veteran's hearing acuity in the right ear has been at Level I. 3. Prior to January 26, 2018, the Veteran's residuals of a left thigh stab wound affecting the muscle group XIII manifested with symptoms more closely approximating a moderate muscle disability. 4. Beginning January 26, 2018, the Veteran's residuals of a left thigh stab wound affecting the muscle group XVI manifested with symptoms more closely approximating a severe muscle disability. 5. Throughout the period on appeal, the Veteran's left thigh scar was not painful and/or unstable or greater than 39 square centimeters in area. 6. Throughout the period on appeal, the Veteran's service-connected PTSD has been characterized by occupational and social impairment with deficiencies in most areas; however, total occupational and social impairment has not been shown. 7. Prior to December 4, 2019, the Veteran did not have more than Level 1 impairment in any facet under DC 8045 the criteria for rating TBI. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100 3. Prior to January 26, 2018, the criteria for an evaluation in excess of 10 percent for residuals of a left thigh stab wound, muscle group XIII have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.55, 4.73, DC 5313. 4. Beginning January 26, 2018, the criteria for an evaluation in excess of 40 percent for residuals of left thigh stab wound, muscle group XIV have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.55, 4.73, DC 5314. 5. The criteria for an initial compensable disability rating for a left thigh scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. 6. The criteria for a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.15, 4.130, DC 9411. 7. The criteria for an initial rating in excess of 10 percent for TBI are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 through October 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in October 2013. In October 2016, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 19.55. Entitlement to a TDIU is dismissed. In August 2021, the Veteran's representative submitted a statement that expressed an intent to withdraw the appealed issue of entitlement to a TDIU. The Board accepts the Veteran's representative statement, on the Veteran's behalf, requesting withdrawal of the claim under appeal. There remains no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the Veteran's appeal as to the issue of entitlement to a TDIU and the claims is dismissed. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 1. Entitlement to an initial compensable rating for right ear hearing loss is denied. The Veteran's service-connected right ear hearing loss is currently assigned a noncompensable disability rating under the provisions of DC 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. He disagrees with the rating assigned. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85 (b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85 (c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85 (e). Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86, although this regulation is not applicable here. When hearing loss is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral designation of I. 38 C.F.R. §§ 3.383, 4.85(f). The Veteran underwent a VA examination in May 2012. The Veteran's puretone thresholds for the right ear were 40, 45, 65, and 70 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 55. The speech discrimination score, using the Maryland CNC word list, was 98 percent for the right ear. In December 2017, the Veteran attended a second VA audiological examination. Here, the Veteran's puretone thresholds for the right ear were 45, 50, 70, and 75 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 60. The speech discrimination score, using the Maryland CNC word list, was 94 percent for the right ear. At a December 2020 VA examination, the Veteran's puretone thresholds for the right ear were 35, 50, 70 and 65 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages to 55. The speech discrimination scores, using the Maryland CNC word list, was 94 percent for the right ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I acuity in the right ear. The combined numeric designations of Level I for the service-connected right ear and Level I for the non-service-connected left ear warrant a noncompensable rating under Table VII. 38 C.F.R. § 4.85. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran's hearing loss has not approximated the criteria for a rating higher than 0 percent for the period on appeal. While the Board does not doubt the Veteran's reduced hearing acuity, it is bound by the rating schedule, which requires more significant reduction before the disability is compensable. Additionally, to the extent that the Veteran has expressed difficulty hearing in daily conditions, such difficulty is contemplated by the rating schedule for hearing loss. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a disability rating higher than 0 percent for right ear hearing loss is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent, prior to January 26, 2018, and in excess of 40 percent, thereafter, for residuals of a left thigh stab wound is denied. Prior to January 26, 2018, the Veteran is assigned a disability rating of 10 percent for residuals of his left thigh stab wound affecting muscle group XIII under DC 5313. During the course of the appeal, in a June 2021 rating decision, the RO granted the Veteran an increased disability rating of 40 percent for residuals of his left thigh stab wound affecting muscle group XIV, effective January 26, 2018, under DC 5314. Muscle injuries are evaluated pursuant to criteria at 38 C.F.R. §§ 4.55, 4.56, and 4.73. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions. 38 C.F.R. § 4.55 (b). The specific bodily functions of each group are listed at 38 C.F.R. § 4.73. Under Diagnostic Code 5315, applicable to muscle Group XV, a slight muscle disability warrants a non-compensable (zero percent) disability rating. A moderate muscle disability warrants a 10 percent rating. A moderately severe muscle disability warrants a 20 percent disability rating. A severe muscle disability under that code warrants a 30 percent disability rating. 38 C.F.R. § 4.7. Under Diagnostic Codes 5313 (Group XIII), 5314 (Group XIV), and 5316 (Group XVI) a slight muscle disability warrants a non-compensable (zero percent) disability rating. A moderate muscle disability warrants a 10 percent rating. A moderately severe muscle disability corresponds to a 30 percent disability rating. A severe muscle disability is assigned a 40 percent rating. 38 C.F.R. § 4.7. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56 (d). A through-and-through injury shall be rated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56 (b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56 (c). For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55 (e). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In a May 2012 VA muscle injuries disability benefits questionnaire (DBQ), the Veteran's left thigh stab wound was noted to be a penetrating muscle injury. The Veteran reported that he had cramps over the left thigh and numbness around the scar. The examiner indicated the Veteran had an injury to muscle group XIII, which affected the posterior thigh and hamstring muscles. These muscles affected the flexion of the left knee. The report indicated that the Veteran did not have any cardinal signs and symptoms of a muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, or impairment of coordination. He also maintained 5 of 5 muscle strength in the knees and did not have atrophy. At an October 2013 VA examination, the Veteran testified that he has muscle cramps, weakness in the muscle, stiffness that affected his walk, and twitching due to residuals of his left thigh stab wound. In January 2018, a VA muscle group examination report indicated the Veteran's residual of a left thigh stab wound affected muscle group XIV, which encompasses the anterior thigh muscles. The report indicated that his muscle injury affected the muscle substance or functioning with muscles that swell and harden abnormally in contraction and caused adaptive contraction of an opposing group of muscles. He had consistent loss of power, weakness, lowered threshold of fatigue, fatigue pain, and impairment of coordination. He maintained 5 of 5 muscle strength. He did not have atrophy. However, he used a cane for his left thigh muscle disability. He also had loss of sensation on his left foot planar surface and second, third, and fourth metacarpals. Treatment notes of record show no greater limitations than noted on in the VA examinations. Based on the aforementioned, the Board finds that a disability rating in excess of 10 percent for service-connected residuals of a left thigh stab wound affecting muscle group XIII is not warranted prior to January 26, 2018 under DC 5313. Prior to January 26, 2018 the record supports that the Veteran's residuals of a left thigh stab wound manifested with cramping and numbness over the wound. However, medical evidence supports that he did not have other cardinal signs and symptoms of a muscle injury, such as, loss of power, lower fatigue threshold of loss of coordination. Upon testing, he maintained 5 of 5 muscle strength and no atrophy. These symptoms more closely represent a muscle disability with moderate severity. Thus, a 10 percent rating is warranted under DC 5313. Beginning January 26, 2018, the Veteran's residuals of a left thigh stab wound is evaluated under DC 5314, which evaluates muscle injuries that affect muscle group XIV. Since January 26, 2018, the record demonstrates that his residuals of a left thigh stab wound manifests with symptoms of muscle swelling and hardening abnormally, consistent loss of power, weakness, lowered threshold of fatigue, fatigue pain, and impairment of coordination. He also had numbness in the left foot. These symptoms most nearly approximate a severe disability under DC 5314, which warrants a 40 percent rating. This is the highest schedular rating allowable under DC 5314. Although the Veteran contends that his residuals of a left thigh stab would warrants higher ratings, he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's muscle disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Veteran's claim for a rating in excess of 10 percent, prior to January 26, 2018, and in excess of 40 percent, thereafter, for residuals of a left thigh stab wound is denied. 3. Entitlement to an initial compensable rating for a left thigh superficial scar is denied. The Veteran is currently assigned a noncompensable rating for his left thigh scar under DC 7805, effective March 3, 2011. He disagrees with the rating assigned. Scars are rated under 38 C.F.R. § 4.118, DCs 7800-7805, and these regulations were revised, effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's case. The Board notes that the record does not show, and the Veteran has not alleged, scars from burns, or scars of the head, face, or neck. As such, DC 7800 is not for consideration. Prior to August 13, 2018, DC 7801 provided that scars other than on the head, face, or neck that are deep and nonlinear are assigned ratings based on the area or areas of the scar(s), with compensable ratings assigned for scars with an area totalling at least 39 square centimeters (sq. cm.). Effective August 13, 2018, DC 7801 was amended to remove characterization as "deep and nonlinear scars" with characterization of "underlying soft tissue damage." Prior to August 13, 2018, DC 7802 provided a 10 percent rating for scars other than the head, face, or neck that are superficial and nonlinear if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater. Id. DC 7802 was amended to remove "superficial and nonlinear" and replace it with "not associated with underlying soft tissue damage." DCs 7804 and 7805 were unaffected by the regulatory revisions. Based on either the old or new criteria, under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. Id. Based on either the old or new criteria, under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DC 7800, 7801, 7802, and 7804 not considered in a rating provided under other appropriate DCs. At a May 2012 VA examination, it was documented that the Veteran had a left thigh linear scar measuring 3 centimeters. The scar was not painful or unstable. The Veteran described the scar as being numb to touch. At the October 2013 hearing, the Veteran testified that he was not having any symptoms related to the scar. He also testified that sometimes this area would tingle or feel numb. In a January 2018 VA examination, his left thigh scar measured 2.7cm x .2cm. The scar was not painful, unstable, or had a total area equal to or greater than 39 square centimeters. The scar was described as asymptomatic and minimal. An October 2018 VA examination recorded a left thigh scar measuring 3.5 cm x 1.5 cm deep non-linear scar. The total affected area measured 5.25 square centimeters. The scar was not unstable or painful. Treatment notes show no additional limitations relating to the left thigh scar. Based on the aforementioned, the Board finds that a compensable rating under DC 7805 is not warranted. The record does not show that the Veteran's left thigh scar is painful or unstable. As such, a compensable disability rating for these scars is not warranted under DC 7804. DC 7800 is not applicable because the Veteran's scars are not on the Veteran's head, face, or neck. Compensable ratings under DC 7801 are not warranted because the area affected is not at least 6 square inches (39 sq. cm.). Additionally, compensable ratings under DC 7802 are not warranted because the scars' areas did not measure a total of 929 square centimeters or greater. Furthermore, there is no objective medical evidence that the Veteran's left thigh scar has caused any actual functional impairment or limitations, and there is no evidence that the Veteran's scars are not superficial. Accordingly, the Board finds that the preponderance of evidence is against a compensable evaluation for the Veteran's service-connected left thigh scar. 4. Entitlement to an initial rating in excess of 70 percent for PTSD is denied. The Veteran is currently in receipt of a 70 percent disability rating for his PTSD under DC 9411. He disagrees with the rating assigned. The Veteran's PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411. Under the General Formula, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. In a May 2012 VA examination, the Veteran reported that he has problems with his temper. His only friends were people that he associated with in his recovery group He was not in a relationship and did not have children. He had hobbies of reading, playing the guitar, hiking, and traveling. Regarding employment, he had a history of several jobs. He reported being fired from one job for not attending regularly. He quit another job because he had problems getting along with the boss. At the time of the examination, he was working fulltime as a project manager. The examiner documented that the Veteran had a history of impulsive and self-destructive behavior. His current PTSD symptoms included impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or worklike settings. Overall, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks, although generally functionally satisfactorily, with normal behavior, self-care, and conversation. In August 2012, treatment notes record active PTSD symptoms of "some" anxiety, hypervigilance, depressed mood, and trouble falling asleep. He was still employed. By October 2012, he reported being clean and sober. He was coping with daily stressors and was less emotionally reactive. He was asked and agreed to speak on a panel. In a December 2014 treatment note, the Veteran's review of systems documented that he denied suicidal ideation, hallucinations, or thoughts of homicidal ideation. In December 2019, the Veteran submitted to another VA examination. Here, the Veteran reported that he attended church and cared for his elderly aunt and mother. He lived by himself and had hobbies of reading and hiking or attending antique shows with his friends. He endorsed a low frustration tolerance, sleep problems, concentration problems, general anxiety, and nightmares. He admitted to having trust issues, which impacted his relationships. He had panic attacks once a month on average. He denied any intent to harm himself or others. Concerning employment, he was working fulltime as a contractor. His active PTSD symptoms included anxiety, suspiciousness, panic attacks once a week, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner also opined that the Veteran's PTSD and TBI have significant symptom overlap. In an August 2020 VA examination, the Veteran reported that he lived by himself and had limited social contact. He still attended church and took care of his elderly aunt and mother. His hobbies did not change. He reported that he was recently laid off due to his irritability, which lead to increased avoidance and decrease in productivity. His current PTSD symptoms were consistent with his prior VA examination. In a March 2021 treatment note, the Veteran reported that he was living with his significant other. Communication issues between the two had increased the Veteran's awareness about his irritability. He endorsed that he was more stressed due to losing his job because of the pandemic. His sleep was still impaired. Based on the aforementioned, the Board finds that the Veteran's service-connected PTSD warrants a 70 percent disability rating throughout the period on appeal. Throughout the appeal period, the Veteran could maintain activities of daily living, though noticeably limited by his PTSD symptoms. The Veteran had problems with relationships, but the record shows that he could engage in social activities, including socializing with his friends from his recovery group, caring for elderly relatives, and attending church and antique shows. Further, the record does not support that the Veteran has had gross impairment in thought processes, or a history of persist delusions or hallucinations. Rather, the Veteran consistently denied hallucinations or delusions. Further, the Veteran repeatedly denied an intent to harm himself or others. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the type and severity of symptoms that indicate a certain level of disability. Examining the Veteran's PTSD symptoms as a whole; however, the Board concludes that the Veteran's symptomatology more nearly approximate the criteria for a rating of 70 percent. However, the Board finds that his PTSD symptoms do not more nearly approximate the rating criteria for the next higher, 100 percent rating. In this regard, the Board finds that the symptoms above have not more nearly approximated total occupational and social impairment. As addressed above, the Veteran has consistently had intact thought processes with no evidence of delusions or hallucinations. The Veteran has also been employed in jobs, such as project management, throughout the majority of period at issue. Although the Veteran reported being laid off in approximately 2020, there is some discrepancy in the record of whether he was laid off due to the pandemic or his PTSD symptoms. Even conceding that his job was lost due to his PTSD symptoms, the record does not demonstrate that his PTSD symptoms alone would cause total occupational impairment. The Veteran has been able to act as a panel discussant, care for his elderly relatives, and maintain focus and concentration during examinations of record. Moreover, although limited by some PTSD symptoms, the Veteran has reported that he has lived with a significant other, travels, hikes or attends antique shows with friends, and attends church. Moreover, there is no evidence that the Veteran has required psychiatric hospitalizations for inappropriate behavior or being a persistent danger to himself or others. The level of functioning discussed above and demonstrated in examinations throughout the appeal period is not compatible with a finding of total occupational and social impairment. After analyzing the symptoms and their effects, the evidence simply fails to demonstrate that his symptoms were of such a severity and frequency to result in occupational and social impairment of the nature described by a 100 percent rating at any time during the appeal period. Based on the overall disability picture, including consideration of the Veteran's lay statements, the effects of his PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria for a 70 percent schedular rating. The Veteran's claim for an increased rating for his service-connected PTSD disability is denied. The Board notes that the Veteran's service-connected PTSD and service-connected residuals of TBI have been determined to have overlapping symptoms which are unable to be differentiated beginning December 4, 2019. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. To avoid pyramiding, the RO combined the Veteran's PTSD and TBI into one disability. 38 C.F.R. § 4.124a, DC 8045, Note (1). The symptoms of both disabilities overlap and had found the criteria established for mental disorders provided a higher evaluation as discussed further below. Beginning December 4, 2019, his PTSD is assigned a 70 percent rating under DC 8045-9411. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the Veteran's TBI is evaluated under DC 9411 using the General Rating Formula. The Board finds that the scheduler criteria for PTSD provides for the better assessment of overall impaired functioning, as further discussed below, due to both conditions. The cognitive symptoms reported by the Veteran are already attributed to his service-connected PTSD. 5. Entitlement to an initial rating in excess of 10 percent for TBI is denied. Prior to December 4, 2019, the Veteran was assigned a 10 percent disability rating for his service-connected TBI under DC 8045. He disagrees with the rating assigned. As previously discussed, his TBI disability rating is combined with his service-connected PTSD and is rated under DC 9411, beginning December 4, 2019 as addressed above. Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive; emotional and/or behavioral; and, physical. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This code is complex and is explained in full below. In summary, however, the cognitive area of dysfunction has several subparts, or facets, for consideration, and each of those facets is assigned a numerical value depending on the symptoms experienced. The ultimate disability rating is based on whichever one facet has the highest number assigned. The emotional/behavioral and physical areas of dysfunction are rated separately under the appropriate diagnostic code. For the purposes of Diagnostic Code 8045, cognitive impairment is defined as decreased memory, concentration, attention, and executive function of the brain. Id. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Id. Not all these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In an individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be rated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Id. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, are to be rated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache, should be rated under that code, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Emotional/behavioral dysfunction is to be evaluated under the Schedule of Ratings for Mental Disorders when there is a diagnosis of a mental disorder. Id.; see also 38 C.F.R. § 4.130. When there is no diagnosis of a mental disorder, emotional and/or behavioral symptoms are to be evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The Veteran has not asserted any physical dysfunction and the medical evidence does not reveal any such dysfunction. The list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. Id. Residuals not listed that are reported on an examination are to be evaluated under the most appropriate diagnostic code. Id. Each condition should be rated separately, if the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition are to be combined using the combined ratings table. Id.; see 38 C.F.R. § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Regarding cognitive impairment and subjective symptoms, the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. They are memory, attention, concentration, and executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. Id. The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." Id. However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Id. A 100-percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and, 3 = 70 percent. Id. There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. Id. at Note 1. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. Id. However, if the manifestations are clearly separable, a separate evaluation for each condition is assigned. Id. Of note, symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present to assign a particular evaluation. Id. at Note 2. "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications and using a telephone. Id. at Note 3. These activities are distinguished from "activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair and using the toilet. Id. The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. Id. at Note 4. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. The Veteran was afforded a VA examination in June 2012 for his TBI. He complained of difficulty with concentration and focusing, combative behavior, inability to get to work on time, and difficulty remembering to do simple tasks. Upon examination, the Veteran had a complaint of mild memory loss; mildly impaired judgment; three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, family, or other close relationships; and one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. All other facets were normal. Noted residuals of TBI included hearing loss and tinnitus. Treatment notes in December 2013 documented TBI symptoms of ongoing attention and short-term memory problems. Other treatment notes of record show no additional limitations. Given the above, the Board finds that the Veteran's residuals of TBI does not warrant a rating in excess of 10 percent during the relevant period on appeal. First, the record does not demonstrate that the Veteran has more than Level 1 impairment in any facet under DC 8045. The Veteran's primary residuals of TBI manifests with symptoms concentration and attention problems, mild memory loss, some neurobehavior limitations, and judgment impairment which comport to Level 1 cognitive impairment. Of note, he is separately rated for right ear hearing loss and tinnitus. Based on the aforementioned, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 10 percent warranted. In consideration of the Veteran's overlapping symptoms related to his service connected TBI and PTSD beginning December 4, 2019, the Board notes that a February 2021 VA examination showed no greater than "Level 2" impairment in any facet. Thus, his TBI would warrant a 40 percent rating if it was rated separately. The examiner again opined that it is not possible to differentiate the symptoms of TBI and PTSD. As discussed above, his TBI was combined with his service-connected PTSD as of December 4, 2019. The assignment of a rating under DC 9411 for the combined disability allows for a higher rating than an evaluation under DC 8045. All symptoms related to the TBI were considered in the above assignment of a 70 percent rating for the combined disability. The combination of the Veteran's TBI and PTSD rating is based on the December 2019 and February 2021 VA examiners' opinions that the Veteran's symptoms from these disabilities overlap and could not be separated. The Court of Appeals for Veterans Claims (Court) has held that assigning two separate ratings for symptoms that are "duplicative or overlapping" violates the rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62. In sum, the Veteran's PTSD rating contemplates all of the Veteran's cognitive, emotional, and behavioral symptoms. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends that his left ear hearing loss was caused or aggravated by his service. In October 2016, the Board remanded entitlement to service connection for left hearing loss to obtain an opinion regarding whether it was clear and unmistakable evidence that his left ear hearing loss preexisted his service and was not clearly and unmistakably aggravated to a permanent degree beyond its natural progression by his service. In December 2020, a VA examiner failed to complete a medical opinion disability benefits questionnaire in full and offered that the Veteran's entrance examination "clearly" indicates mild hearing loss. The Board finds that the VA examiner's opinion is inadequate, as it fails to use the correct standard for finding that the Veteran has a preexisting disability. To this point, the October 2016 Board remand requested that the examiner determine whether there was clear and unmistakable evidence that the Veteran's left hearing loss preexisted his service. Despite such instruction, the VA examiner merely determined that the Veteran's left ear hearing loss "clearly" was noted at entrance. This opinion is insufficient. As such, further development is necessary. Secondly, the VA examiner also opined that the Veteran's left ear hearing loss was not caused by his TBI. However, the VA examiner failed to offer rationale for the opinion expressed. Lastly, the VA examiner opined that the Veteran's left ear hearing loss was not aggravated by his TBI. The rationale noted that his left ear hearing had decreased. However, the decrease is less likely not aggravated beyond its natural progression as evidenced on the separation audiogram. The Board finds that the rationale provided does not adequately explain a finding that the Veteran's left hearing loss was not aggravated by his TBI. Saliently, the VA examiner references the Veteran's separation examination in support of the negative opinion. However, the Veteran's findings during a separation examination decades earlier has little, if any, significance on the his current left ear hearing acuity. Rather, the examiner was asked to consider whether the Veteran's service-connected TBI aggravated his current left ear hearing loss beyond its natural progression. Based on the aforementioned, the Board finds that further development is warranted. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to opinion as to the Veteran's left ear hearing loss. The examiner is asked to offer an opinion on the following: a. Opine whether the Veteran's left ear hearing loss clearly and unmistakably preexisted the Veteran's service. If the examiner finds that the Veteran's left ear hearing loss did clearly and unmistakably preexist service, the clinician should opine if there is clear and unmistakable evidence that such preexisting left ear hearing loss did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. The examiner is asked to consider the Veteran's lay statements in making this determination. b. Opine whether the Veteran's left ear hearing loss is at least as likely as not caused or aggravated beyond its natural progression by his service-connected TBI. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "clear and unmistakable" means obvious, and not debatable. Furthermore, the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.