Citation Nr: 21073205 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-47 473 DATE: December 7, 2021 ORDER New and material evidence to reopen the following claims for entitlement to service connection having been received; therefore, the claims are reopened: asthma, bilateral hearing loss, and dental trauma. Entitlement to a rating in excess of 50 percent for headaches is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 11, 2019; and in excess of 70 percent thereafter is denied. Entitlement to an initial, separate 10 percent rating for residuals of a traumatic brain injury (TBI), is granted. Entitlement to an earlier effective date for the grant of service connection for residuals of a TBI is denied. Entitlement to an earlier effective date for entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective September 24, 2013. REMANDED In addition, the claims for service connection for asthma, bilateral hearing loss, and dental trauma are remanded to the agency of original jurisdiction (AOJ) for additional development. FINDINGS OF FACT 1. In an April 2015 rating decision, the AOJ denied the Veteran's claims of entitlement to service connection for asthma and bilateral hearing loss. That rating decision was not appealed and became final. 2. Since the April 2015 rating decision, the Veteran has submitted new and material evidence sufficient to reopen these claims. 3. In a January 2016 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for dental trauma. That rating decision was not appealed and became final. 4. Since the January 2016 rating decision, the Veteran has submitted new and material evidence sufficient to reopen this claim. 5. The Veteran is receiving the maximum schedular rating for his service-connected headache disability and his symptoms are adequately covered by the associated criteria for that rating. 6. Prior to February 11, 2019, the Veteran's PTSD manifested in symptomology that demonstrated occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas. 7. Since, February 11, 2019, the Veteran's PTSD has manifested in symptomology that demonstrates occupational and social impairment with deficiencies in most areas. 8. The Veteran's TBI manifested in residuals separate from service-connected PTSD; therefore, a separate compensable rating is warranted. 9. The probative evidence of record does not indicate that prior to September 24, 2013, the Veteran filed a formal or informal claim for service connection for residuals of a TBI nor was there a non-final rating decision through which an earlier effective date may attach. 10. The probative evidence of record establishes that effective September 24, 2013, the Veteran did not engage in substantially gainful employment and the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The April 2015 rating decision is final with respect to the Veteran's claims to establish service connection for asthma and bilateral hearing loss. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The additional evidence received since the April 2015 rating decision is new and material to the claims for entitlement to service connection for asthma and bilateral hearing loss; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The January 2016 rating decision is final with respect to the Veteran's claim to establish service connection for a dental condition. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 4. The additional evidence received since the January 2016 rating decision is new and material to the claim for entitlement to service connection for a dental condition; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. There is no legal basis for the assignment of a rating in excess of 50 percent for migraines/tension headaches. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 8100. 6. The criteria for a rating in excess of 50 percent for PTSD prior to February 11, 2019; and in excess of 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.126, 4.130, Diagnostic Code 9411. 7. The criteria for separate 10 percent rating for residuals of a TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.124a, Diagnostic Code 8045. 8. The criteria for an effective date prior to September 24, 2013 for service connection for residuals of TBI are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105 (a), 3.151(a), 3.155(a), 3.157, 3.400. 9. The criteria for an earlier entitlement to a TDIU have been met effective September 24, 2013. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.10, 3.340, 3.341, 3.400, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 2002 to September 2005. The Veteran's claims are on appeal to the Board of Veterans Appeals (Board) from rating decisions in May 2017 (hearing loss, asthma, dental condition, headaches, PTSD, and TDIU) and February 2018 (initial rating for residuals of a TBI). The Veteran appeared and testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of the hearing is associated with the record. After the most recent (supplemental) statement of the case ((S)SOC), the Veteran submitted additional evidence. He waived AOJ review of the evidence and thus the Board may proceed to adjudicate his claims. In March 2019, the AOJ issued a rating decision granting increased ratings for the Veteran's PTSD and headache disabilities and granting entitlement to a TDIU. The Veteran attempted to file a higher-level review (HLR) of this rating decision. However, this rating decision is an adjudication of claims that were pending in the legacy system. 38 C.F.R. § 3.2601(a) specifically states that the HLR process is only for claims under the appeals modernization act (AMA), and by exclusion, not legacy appeals. Thus, the AOJ properly rejected the Veteran's attempts to enter AMA. New and Material Evidence 1. Whether new and material evidence to reopen the following claims for entitlement to service connection have been received: asthma, bilateral hearing loss, and dental trauma. In an April 2015 rating decision, the AOJ denied the Veteran's claims of entitlement to service connection for asthma and bilateral hearing loss. The Veteran's claim for bilateral hearing loss was denied because the Veteran did not have a diagnosis that met regulatory requirements for a disability for VA compensation purposes. The Veteran's claim for asthma was denied because there was no nexus connecting the condition to service or to the Veteran's service-connected PTSD disability. That rating decision was not appealed and became final. In a January 2016 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for dental trauma. The Veteran's claim was denied because the clinician did not link the Veteran's dental condition to service. That rating decision was not appealed and became final. Generally, a claim in the legacy system that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines "new" evidence is existing evidence not previously submitted to agency decisionmakers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Regardless of what action was taken by the agency of original jurisdiction, the Board is under a statutory obligation to conduct a de novo review of the new and material issue. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id., at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Since the original denials, additional evidence was associated with the claims file, which includes VA and private treatment records and the Veteran's testimony. Specifically, with regards to the Veteran's claim for bilateral hearing loss, while the medical records contain no treatment for the Veteran's hearing loss, he testified and medical records indicate that his hearing is sufficiently degraded as to require his use of hearing aids. This was not documented at the last VA audiological examination in February 2009. The above evidence is "new," as it was not before VA at the time of the last final rating decisions, and "material" as it raises the reasonable possibility of substantiating the previously-denied issues. Therefore, the Board finds that new and material evidence has been submitted sufficient to reopen the claims of service connection for asthma, bilateral hearing loss, and dental trauma. The merits of these claims are addressed in the Remand portion of this decision. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's symptoms have been consistent such that staged ratings do not apply except as otherwise granted. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a rating in excess of 50 percent for headaches By way of history, the AOJ found the Veteran to have applied for an increased rating for headaches on December 28, 2016. A May 2017 rating decision continued the Veteran's 30 percent rating and the present appeal ensued. In March 2019, however, the AOJ granted a 50 percent rating for the headaches effective December 28, 2016. While the rating decision noted "this grant of 100 percent satisfies this issue on appeal," the Veteran did not withdraw the claim. At the hearing, the Veteran's representative did not present additional evidence or elicit testimony on the issue, but instead submitted on the evidence of record. The Veteran's headaches are currently rated at 50 percent disabling under DC 8100 since April 30, 2016. 38 C.F.R. § 4.87. Pursuant to DC 8100, a 50 percent rating is assigned for migraines that are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the maximum schedular rating available for headaches. The Veteran has not contended, and the evidence does not suggest, that he has experienced headache symptoms outside of those listed in the schedular criteria. See Ducette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. App. 1004 (Fed. Cir. 2007)). Therefore, based on the foregoing evidence and that 50 percent is the maximum schedular rating available for headaches, the Board finds that an increased rating is not warranted. The claim is denied. 3. Entitlement to a rating in excess of 50 percent for PTSD prior to February 11, 2019; and in excess of 70 percent thereafter By way of history, the AOJ found the Veteran to have applied for an increased rating for PTSD on December 28, 2016. A May 2017 rating decision continued the Veteran's 50 percent rating and the present appeal ensued. In March 2019, the AOJ granted a 70 percent rating for PTSD effective February 11, 2019, the date of a VA examination. Other than the Veteran's testimony, he did not present any specific argument for a why a higher rating is warranted. The disability is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. This diagnostic code provides that PTSD is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence The Veteran was afforded two VA examinations during the period on appeal. The first came in February 2017. The Veteran reported being depressed and irritable but denied generalized anxiety. He reported thinking about "having to take life" once a month but could not describe any other intrusive thought well. He avoided crowds and did not like shopping. He expected bad things to happen when he was out, so he often stayed home. He reported sleeping for 2 hours a night and would awaken frequently. He reported he does not typically remember his dreams but would sometimes have a nightmare where he is blown up by a car bomb. He denied suicidal ideation. The examiner assessed the following symptoms: depression, suspiciousness, and chronic sleep impairment. His mental status exam was within normal limits. The clinician found the Veteran's functioning to be consistent with occupational and social impairment with reduced reliability and productivity, equivalent to a 50 percent rating. The Veteran's second VA examination was on February 11, 2019. Since his last VA examination, the Veteran reported living with his family, his parents next door, and he had a few friends in the area. He had not worked since February 2017 due to headaches. He reported he works best independently when he does work. He reported he has problems with concentration, frustration, loss of interest in activities, insomnia, night sweats, and is easily started. He reported anxiety and hyper-vigilance. The examiner assessed the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and an inability to establish and maintain effective relationships. While the Veteran appeared anxious and irritable, his mental status exam was otherwise within normal limits. The examiner found the Veteran to have occupational and social impairment with deficiencies in most area, equivalent to a 70 percent rating. The AOJ increased the Veteran's PTSD rating based on this examination. The Veteran's VA treatment records are associated with the file, however the most recent date of treatment in those records is from June 2018. However, these records were associated with the file in January 2019, therefore the Board does not find there to be any intervening VA treatment records. The Veteran's mental status examinations were within normal limits. His depression screening in January 2017 indicated moderately severe depression, but no other similar screenings were found during the remainder of the appeals period. The Veteran submitted private psychiatric records from September to November 2018. However, these records do not provide any objective information related to the Veteran's functioning nor do they discuss the relative severity of the Veteran's symptoms. Other private records from Bay Area indicate the Veteran was admitted to the hospital for back pain and alcoholism and could not care for himself, but this appeared to be related to his back. His mental status examination was within normal limits. The Board has also considered the Veteran's testimony from the April 2021 hearing. The Veteran testified that he experienced difficulties with crowds, loud noises, being around people, and suspiciousness. Analysis Based on the foregoing, prior to February 11, 2019, the Board finds the Veteran's service-connected PTSD was manifested primarily by symptoms that included depression, suspiciousness, and chronic sleep impairment. His mental status exam was within normal limits and he did not report suicidal or homicidal ideations. As a whole, the effect of the severity, frequency, and duration of these signs and symptoms most nearly approximated reduced reliability and productivity due to such symptoms. However, the record does not substantiate occupational and social impairment with deficiencies in most areas or a higher level of impairment. Since February 11, 2019, the Board finds that the record substantiates occupational and social impairment with deficiencies in most areas due to symptoms as found in the February 11, 2019 VA examination. However, again, his mental status exam was within normal limits and he did not report suicidal or homicidal ideations. The Veteran, through his representative, asserts that his functioning most closely approximates a 70 percent rating prior to February 11, 2019. Even considering the Veteran's most severe symptoms, those symptoms themselves are not so severe as to approximate deficiencies in most areas. While the records certainly indicate that the Veteran has occasional symptoms of anger and depression, and that he socially isolates, the probative evidence of record does not approximate that these symptoms equate to a higher level of impairment. Specifically, the Board does not find that that these symptoms approximate the level of severity contemplated by suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; difficulty in adapting to stressful circumstances (including work or a work-like setting), or other symptoms on par with the level of severity contemplated by these. To the extent that the Veteran has these symptoms on occasion, these symptoms, as a whole, do not approximate occupational and social impairment with deficiencies in most areas or a higher level of impairment. As to whether the Veteran's rating is total, the Board does not find gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name, or other manifestations on par with the level of severity contemplated by those symptoms. Nor are his stated symptoms of a similar severity or frequency as these symptoms would demonstrate. The presence or absence of specific symptoms that correspond to a particular rating, is not dispositive. Mauerhan v. Principi, 16 Vet. App. 436, 442. The pertinent issue is the level of occupational and social impairment resulting from the Veteran's symptomatology. In that regard, as explained above, the Board finds the effect of symptoms associated with the Veteran's PTSD during the period on appeal most nearly approximated occupational and social impairment with reduced reliability and productivity prior to February 11, 2019. After that, deficiencies in most areas is shown. However, a total impairment is simply not shown. In view of the foregoing, the Board concludes that the evidence demonstrates that a rating in excess of 50 percent is not warranted for service-connected PTSD prior to February 11, 2019; and in excess of 70 percent thereafter. Thus, the claim is denied. 4. Entitlement to an initial, separate 10 percent rating for residuals of a TBI The Veteran contends that the residuals of his TBI should be rated higher. By way of history, the Veteran applied for service connection for residuals of TBI in September 2013. The Veteran then appealed that denial and ultimately appealed the determination to the Board. However, while the claim was pending, the AOJ granted the claim of service connection in February 2018, but did not assign a separate rating for TBI. Instead, the non-headache TBI residuals were rated along with the Veteran's PTSD rating. The Veteran appealed the denial of a separate rating and the effective date of service connection (discussed below). The Veteran is separately service-connected for headaches as related to his TBI: the headaches are rated as 50 percent disabling. He is also service-connected for PTSD, but he was service-connected for PTSD separate and apart from the TBI. The Veteran contends that he has additional symptoms and conditions that are related to his service-connected TBI disorder and not to PTSD. Thus, his TBI warrants a separate rating. Specifically, he identified memory loss, confusion, and dizziness. 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 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. Evidence and Analysis The Veteran's main contention is that he has residuals of a TBI that are separate and apart from the symptomology of his service-connected PTSD. The AOJ obtained two medical examinations with medical opinions related to the Veteran's contentions in February 2019. The first was from J.C., Ph.D, a psychologist. Dr. J.C. noted that the Veteran has a TBI and stated as follows: "It is impossible to [differentiate PTSD and TBI symptoms] without speculation. The diagnoses are independent of each other and result from separate etiologies. However, the symptoms that comprise each disorder are similar and overlap significantly." There is no additional information related to the opinion, including addressing the Veteran's specific contentions. The second was from Z.L., M.D., with a specialty in family medicine. The clinician noted the Veteran's specific symptoms that the Veteran associated with his TBI. After performing an examination and identifying the various deficits associated with the Veteran's TBI, the doctor found as follows: "the ... minor difficulties with short term recall and subjective difficulties with learned motor skills that the Veteran is experiencing are likely residuals of TBI; it is impossible to determine without speculation that the Veteran's associated irritability, moodiness, difficulties concentrating are due to the TBI versus the Veteran's PTSD." The Board finds these two medical opinions to be the most probative because they have the most medical evidence at their disposal to review. Taking each opinion in turn, the Board infers that the psychologist has more educational training in the field of assessing, diagnosing, and treating TBI residuals and PTSD based on the clinician's training. While the family medicine clinician does not have the extensive training in psychiatric disorders that the psychologist has, the file indicates that the family medicine clinician has the training to perform TBI examinations. Thus, the Board finds both clinicians to be competent to render medical opinions on whether the symptoms can be clearly differentiated. While both clinicians are competent, the Board gives more probative weight to Dr. Z.L., the family medicine specialist. That clinician considered the Veteran's specific symptoms and considered them in the context of evaluating a TBI, rather than a general psychological examination. The psychologist's opinion is given less probative weight for not considering the specific symptoms. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that the Veteran has TBI residuals that can be clearly differentiated from his service-connected PTSD: difficulties with short term recall and subjective difficulties with learned motor skills. The analysis now shifts to the relative severity of the TBI residuals. The Board has considered the medical record and finds the various TBI examinations to be the most probative because these examinations are conducted by clinicians competent to perform such examinations and specifically address the domains impacted by TBI residuals. There are two such TBI examinations in the record, in January 2018 and February 2019. The examinations gave higher sub-scores to the facets of "subjective symptoms" and "neurobehavioral effects." However, these facets and their scores are related to the symptomology of the Veteran's separately rated PTSD and headache disability. Thus, considering the remaining facets, the highest remaining score is "1." The Board has considered the contemporaneous medical record. While the Veteran reported subjective memory loss that was severe in January and February 2017, the Veteran's memory and cognition was only found to be mildly impaired by VA clinicians. The Veteran did not report dizziness at the TBI examinations, thus, to the extent that the Veteran has experienced these symptoms, the Board finds them to be mild. Further, the sensation does not interfere with activities of daily living. Therefore, the criteria for a separate compensable rating of 10 percent is warranted for a maximum sub-score of "1" in the facets related to TBI functioning. For these reasons, the Board finds that a separate disability rating for the Veteran's TBI residuals, apart from his PTSD, is appropriate and a 10 percent rating is warranted. Thus, the claim is granted. The Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Effective Date 5. Entitlement to an earlier effective date for the grant of service connection for TBI The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for residuals of a TBI, although a specific reason is not provided. Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). However, such provisions, including the provisions under 38 C.F.R. § 3.816, do not apply to the Veteran's procedural history. By way of history, the Veteran filed a claim for service connection for TBI in December 2008. It was denied in February 2009. The Veteran did not perfect an appeal. Therefore, that claim ended. When a claim in denied and not appealed, it becomes final. Under the legacy system of appeals, which applies to this case, new and material evidence is required to reopen a finally denied claim. The regulations regarding effective dates for reopened claims state that the proper effective date is the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. In February 2012, the Veteran raised the claim for TBI again. In a March 2012 notice, the claim was denied, as no new and material evidence had been submitted, sufficient to reopen the claim. The Veteran did not appeal that determination. A third informal claim for service connection for residuals of TBI was received on September 24, 2013. While it was initially denied in November 2013, the Veteran submitted a December 2013 notice of disagreement, that the regional office responded to in an August 2015 statement of the case. The Veteran perfected the appeal, and it was ultimately granted in a February 2018 rating decision, made effective the date of his informal claim, September 24, 2013. On this evidence, prior to September 24, 2013, the date of receipt of the Veteran's claim, there is no document of record that may reasonably be construed as a formal or informal claim for service connection for residuals of a TBI. See 38 C.F.R. §§ 3.151 (a), 3.155(a). The February 2009 denial was final, and there has been no allegation of a clear and unmistakable error in that decision, such that the finality would be overturned. Therefore, the earliest possible effective date for the award of service connection for that disability is September 24, 2013, the date the Veteran's claim to reopen his previously denied claim for service connection was filed. See 38 C.F.R. §§ 3.114 (a), 3.400. 6. Entitlement to an earlier effective date for a TDIU Through a March 2019 rating decision, the Veteran was awarded a TDIU effective September 23, 2016, the date after the Veteran's last day of work. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. By way of background, the Veteran applied for a TDIU December 2016, however the AOJ awarded a TDIU prior to this date. The Veteran asserted that his TBI residuals, headaches, and PTSD rendered him unemployable. He made similar assertions in previous correspondences. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). As explained above, the Veteran's claim for an increased/separate rating for a TBI had been on appeal since September 23, 2013. Thus, the Board finds that under Rice, the Veteran's claim for entitlement to a TDIU has been pending since September 23, 2013. However, the issue of whether the Veteran was working and whether he was employable remains. Law VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Factors to be considered in determining whether unemployability exists are the Veteran's education, employment history, and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Consideration may not be given to the veteran's age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total (100 percent) disability ratings will be assigned "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a). A total disability rating may be assigned under a Diagnostic Code where the Diagnostic Code associated with a disability prescribes a 100 percent disability rating. Additionally, regulations provide other methods by which TDIU may be awarded. TDIU may be assigned to a veteran who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities," provided that he has received a disability rating of 60 percent or greater, or if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40 percent, and the combined disability rating for all disorders is at least 70 percent. Analysis The Veteran asserts that he was marginally employed prior to September 23, 2016, and therefore he should be entitled to a TDIU prior to that date. The Veteran submitted his Social Security earnings as evidence of his marginal employment. See VBMS, document labeled Pension Bank Statement, receipt date December 10, 2019. Since September 2013, the Veteran only posted earnings in 2016. The Veteran submitted information related to his previous employment. See VBMS, document labeled VA 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits, receipt date February 8, 2017. The Veteran was employed for approximately five months from April to September 2016. He worked approximately six hours a day, but his weekly work varied from 24 to 40 hours. Further, the employer was a "veteran friendly" outdoor employer and the Veteran left work due to "mental distress." Thus, in looking at the Veteran's employment history since 2013, he worked for approximately five months in what appears to be a sheltered work environment but left due to mental distress. Given the above, the Board declines to find that the Veteran was not engaged in substantially gainful employment since September 23, 2013 because his work was not more than marginal. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Turning to the Veteran's ratings on appeal, the Veteran met the schedular requirements for a TDIU since September 23, 2013 with his service-connected PTSD, headaches, and vision loss each rated above 40 percent, as well as less severe but still symptomatic shoulder, ankle, and tinnitus disabilities. Given these disabilities, the Board finds the Veteran incapable of performing the physical and mental acts required by employment because his physical and mental functioning is severely impaired due to service-connected disabilities. Considering the evidence of record, the Board finds that he is reasonably precluded from employment since September 23, 2013. See 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (in a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator); see also Gilbert, supra. Therefore, the claim for an earlier effective date for a TDIU is granted, effective September 23, 2013. REASONS FOR REMAND 7. Entitlement to service connection for asthma is remanded. 8. Entitlement to service connection for bilateral hearing loss is remanded. 9. Entitlement to service connection for dental trauma is remanded. As explained above, the Board has found that new and material evidence has been presented to reopen the Veteran's claims. The Board finds the criteria for VA examinations to have been met. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a remand for evaluations is warranted for these claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his hearing loss, to determine whether he now meets the criteria for a disability. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's bilateral hearing loss is at least as likely as not related to his military service. The clinician should address the Veteran's contentions that he has hearing loss due to faulty ear plugs during service. The clinician should also address the impact of the Veteran's TBI on any audiological difficulties. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that 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 it is to find against it. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's asthma is at least as likely as not related to his military service. The Veteran should clarify what diagnosis he contends is related to military service, to include sinus problems. The clinician should address the Veteran's contention that during the car bomb explosion in which he was involved, he inhaled smoke that caused asthma or other respiratory issues. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that 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 it is to find against it. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's dental problems are at least as likely as not related to his military service. The clinician should address the Veteran's contention that he "cracked his teeth" as a result of the car bomb explosion. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that 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 it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.