Citation Nr: 21077414 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-00 652 DATE: December 29, 2021 ORDER Entitlement a 20 percent rating, and no higher, is granted from May 14, 2013 for bilateral hearing loss disability; a compensable rating prior to May 14, 2013 is denied. Entitlement to a rating in excess of 20 percent for neck disc problem is denied. Entitlement to a compensable rating for post-traumatic headaches is denied. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a left elbow disorder is denied. FINDINGS OF FACT 1. The most probative evidence shows that at worst the Veteran has Level VIII hearing in his right ear and Level I hearing in his left ear prior to May 14, 2013, and Level IX hearing in his right ear and Level III hearing in his left ear as of that date. 2. Throughout the appeal period, the Veteran's neck disc problem (degenerative arthritis of the cervical spine) has not approximated forward flexion of the cervical spine limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine, there has there been no IVDS of the cervical spine with incapacitating episodes nor are there any neurological manifestations associated with the cervical spine. 3. For the period on appeal, the Veteran's post-traumatic headaches are not shown to be productive of characteristic prostrating attacks averaging one episode in 2 months over the last several months. 4. For the period on appeal, the Veteran's TBI was manifested by no more than level 1 impairment of any cognitive function. 5. The Veteran's left knee disorder was not manifest in service nor did arthritis of the left knee manifest within one year of separation from service. The disability is not otherwise related to service. 6. The Veteran's left elbow disorder was not manifest in service and there is no arthritis of the left elbow. The disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss disability are not met or approximated prior to May 14, 2013, and the criteria for a 20 percent rating and no higher are met as of that date. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Part 4, Diagnostic Code 6100. 2. The criteria for a rating in excess of 20 percent for a neck disc problem have not been met or approximated at any time relevant to the claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for a compensable evaluation for post-traumatic headaches have not been met or approximated at any time relevant to the claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a Diagnostic Code 8100. 4. The criteria for entitlement to a disability rating in excess of 10 percent for TBI have not been met or approximated at any time relevant to the claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8045. 5. The criteria for service connection for left knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for left elbow disorder are not met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to April 1973 and from February 1974 to April 1992 with service in Southwest Asia. He appeals a June 2013 rating decision. These claims were filed in August 2011. The Board remanded these matters in December 2018. They have been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). VA and non-VA outpatient treatment records and medical reports during the period on appeal denote treatment for bilateral hearing loss, cervical pain, TBI, knee pain and left elbow complaints. 1. Bilateral hearing loss disability The Veteran seeks higher ratings for this disability, rated noncompensable under Diagnostic Code (DC) 6100 prior to May 12, 2021, and as 20 percent disabling as of that date. 38 C.F.R. §§ 4.85, 4.86, 4.87. Under the rating criteria, the method for rating bilateral hearing loss disability is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). Table VIa will also be used when the examiner certifies that language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., make the use of speech discrimination test inappropriate. 38 C.F.R. § 4.85 (c). "[I]n addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). However, such is not part of the rating criteria. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran underwent VA audiological evaluation in May 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 70 70 85 70 LEFT 20 30 65 80 49 Speech audiometry revealed speech recognition ability of 44% percent in the right ear and of 96% in the left ear. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VI to the above right ear audiological findings, (results in higher numeral than VIa, considering both due to the exceptional pattern of hearing loss) the Veteran has a numeric designation of VIII for the right ear. Applying 38 C.F.R. § 4.85, Table VI to the above left ear audiological findings, the Veteran has a numeric designation of I for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 0 percent or noncompensable disability evaluation. The Veteran underwent VA audiological evaluation in May 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 75 90 105+ 105+ 93.75 LEFT 35 45 70 90 60 Speech audiometry revealed speech recognition ability of 90% in the left ear but could not be tested (CNT) in the right ear. The puretone testing results were noted to be valid for rating purposes and the use of the CNC test was noted appropriate for this Veteran in the left ear but not the right ear. As to the right ear, the examiner cited language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. The Veteran could not understand words at any level presented for the right ear. The diagnosis sensorineural hearing loss bilaterally was made. Applying 38 C.F.R. § 4.85, Table VIA to the above right ear audiological findings, the Veteran has a numeric designation of IX for the right ear. Applying 38 C.F.R. § 4.85, Table VI to the above left ear audiological findings, the Veteran has a numeric designation of III for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 20 percent disability evaluation as of that date. As to the period on appeal up to the May 2013 examination, the preponderance of the evidence is against a compensable rating. The treatment record as well as the examination report are against so finding. As to the functional impact of the hearing loss, the VA examiner in 2013 observed that the Veteran's hearing loss did impact ordinary conditions of daily life inasmuch as the Veteran reported it is difficult to understand people. He worked at Wal-Mart and when people ask questions about where things are, he can barely understand them. The Board acknowledges the reported functional limitation but finds that it not inconsistent with the noncompensable rating up to the date of the May 2013 examination. We point out that we remanded this claim in December 2018 based on our finding that the Veteran urged that the disability had worsened since the date of the May 2013 examination. The May 2021 examiner, who reviewed the records, noted there had been a worsening of the Veteran's symptoms. We find that the complaints for the period of time after the May 13, 2013 examination are not inconsistent with the findings on the May 2021 examination. Treatment records for this time period reflect that he not only wears hearing aids, but that hearing was listed in 2016 as a barrier to learning. The evidence does not suggest that the hearing loss became worse on May 12, 2021. Rather, we find that the evidence is in equipoise as to whether the 20 percent rating is warranted from May 14, 2013, as opposed to just from the May 2021 examination. As to functional impact of the hearing loss, the VA examiner in 2021 observed that the Veteran's hearing loss did impact ordinary conditions of daily life inasmuch as the Veteran reported difficulty hearing the TV and that his family gets upset with him because he cannot hear. This report of functional impact is consistent with his complaints throughout the record after the May 2013 examination. The Board acknowledges the reported functional limitation but finds it consistent with the 20 percent rating from May 14, 2013. None of the treatment records reflects any reports suggesting hearing loss results in manifestations warranting a higher rating. Based on a careful review of all the evidence, the Board finds that a compensable rating for the Veteran's service-connected bilateral hearing loss disability is not warranted for the period prior to May 14, 2013, and a rating of 20 percent, and no higher, is warranted as of that date. The criteria set out by VA for higher ratings are simply not met or approximated. The vague argument in favor of higher ratings is outweighed by the documented VA examinations and treatment records showing no objective support for ratings other than those granted herein. It must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Critically, we conclude that the preponderance of the evidence is against finding that the hearing loss disability worsened to a compensable degree prior to May 14, 2013, or in excess of 20 percent as of that date. As the preponderance of the evidence is against the claim for increase other than that set forth herein, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 2. Neck disc problem (degenerative arthritis of the cervical spine) This disability is rated 20 percent under DC 5242 for degenerative arthritis of the cervical spine pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. The Veteran seeks a higher rating. The 20 percent rating has been assigned based on limited range of motion, combined range of motion of the cervical spine not greater than 170 degrees, with painful motion noted. Higher ratings are available as follows: A 30 percent rating for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine; A 40 percent rating for unfavorable ankylosis of the entire cervical spine; A 100 percent rating for unfavorable ankylosis of the entire spine. Normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral rotation are 0 to 80 degrees. The normal combined range of motion for the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243. In addition, the disability may be rated according to the aforementioned Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the treatment and examination records reflect there is no IVDS and no incapacitating episodes of IVDS. See, e.g., May 2013 and October 2019 VA cervical spine examinations. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. For the following reasons, the preponderance of the evidence is against a rating in excess of 20 percent for the cervical spine disorder. The Board finds the October 2019 VA cervical spine examination to be the most comprehensive and probative evidence as to the current manifestations of this disability. This examination was based on a review of the record and is considered wholly consistent with the treatment record as to degree of disability. As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016). The examiner addressed this in the October 2019 report. The prior examination record has been considered but is ultimately deemed inadequate in this regard. Regardless, a higher degree of impairment is not shown in any other examination. First, we note that the treatment and examination records reflect there is no IVDS and thus there are no incapacitating episodes of IVDS, nor is there radiculopathy or other neurologic abnormality. See, e.g., October 2019 VA cervical spine examination. No examination reflects findings of such abnormalities, to include radiculopathy, and the treatment record is not inconsistent with the 2019 findings. Furthermore, all examinations reflect there is no ankylosis. The October 2019 examiner specifically reviewed the record. Moreover, forward flexion of the cervical spine is not limited to 15 degrees or less; at the 2019 examination it was to 45 degrees. At the 2019 VA examination, the diagnosis was degenerative arthritis of the spine and degenerative joint disease (DJD) cervical spine. The Veteran reported he had surgery on his neck in May 2019. He reported flare ups in which pain occurs spontaneously. Functional loss was reportedly limited overhead work. Range of motion included forward flexion to 45 degrees, extension to 20 degrees, right lateral flexion to 5 degrees and left lateral flexion to 5 degrees, right lateral rotation to 35 degrees and left lateral rotation to 45 degrees. Range of motion (ROM) itself contributes to functional loss in that limited rotation interferes with driving. Pain noted on examination caused functional loss. Repetitive use testing with at least three repetitions did not cause additional loss of function or range of motion. The examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, but ROM was preserved and there was just increased pain as per the Veteran's subjective report. The exam was not conducted during a flare-up but pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups, though ROM is again preserved, with just increased pain as per Veteran's subjective report. There was no guarding or muscle spasm, atrophy or strength abnormality. The work impact was that overhead work is limited, but sedentary work is not limited. As to joint testing considerations, the examiner noted (1) testing for evidence of pain on passive range of motion cannot be performed on the spine and (2) testing for evidence of pain when the joint is used in non-weight bearing cannot be performed, the spine is always weight bearing. Thus, the examination was accomplished consistent with 38 C.F.R. § 4.59. The Veteran described his pain of the cervical spine and the functional impact, decreased range of motion, was noted. These manifestations do not warrant a higher rating based on the current record. As to neck pain and the effect on function, the Board finds that the current rating sufficiently compensates the Veteran for this disability as the record shows range of motion that is not substantially changed with repeated testing and his pain is described as not limiting his function beyond that consistent with the 20 percent rating. There is no atrophy nor is there muscle spasm or indication of disuse, nor is there weakened movement or diminished motion with fatigue. As to flare-ups, he has described the pain as occurring spontaneously or with repetitive use over time. This does not indicate that his motion is so limited as to suggest manifestations that support a higher rating. Nor does the treatment record support such a finding. Here, there is pain on motion and with repetitive use and causes no more than the stated limited range of motion. However, there is no lay or medical evidence that flexion of the cervical spine is limited to 15 degrees or less due to any factor. Accordingly, the 20 percent rating adequately represents any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. §§ 4.41, 4.10. We note that the Veteran's representative pointed out that the Veteran was seen at the VA medical center for outpatient treatment in 2020 and was noted to have on a cervical collar for recent surgery. Here, we note that the 2019 VA examiner noted the surgery in the report. We also note, parenthetically, that as revised, effective February 7, 2021, Diagnostic Code 5242 is now designated as being for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome and directs the rater or adjudicator to see either Diagnostic Code 5003 or 5010. Diagnostic Code 5010 has been revised to refer to post-traumatic arthritis and the instruction to rate as degenerative arthritis under 5003 has been removed. Traumatic arthritis is now rated as "limitation of motion, dislocation, or other specified instability under the affected joint." The changes are minor and do not result in a higher rating in this claim. For all the foregoing reasons, the great preponderance of the evidence is against a rating in excess of 20 percent at any time during the pendency of the claim for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Headaches The Veteran seeks a compensable rating for his headaches, rated under Diagnostic Code (DC) 8100 for Migraine under the Schedule of Ratings neurological conditions and convulsive disorders. 38 C.F.R. §§ 4.124a, 4.27. Under Diagnostic Code 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the maximum available schedular evaluation for headaches is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Neither the rating criteria nor the Court has defined the term "prostrating". According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." "Inadaptability" is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). The Veteran's diagnosis of post traumatic headaches is not in dispute, and the most recent VA examination in October 2019 as well as the May 2013 VA examination reflect an in-service date of diagnosis, related to a car accident in 1977. The question for the Board in rating this disability is the severity and frequency of the Veteran's headaches. We note that he is also rated for TBI, which will be discussed after this rating The May 2013 VA examination noted the diagnosis of post traumatic headaches, treated with Ibuprofen and Excedrin headache, related to the 1977 accident but also progressively worsened during Desert Storm. They are sharp and in the frontal area, and Ibuprofen calms them and makes them tolerable. He reported less than one per day on both sides of the head, and there were no characteristically prostrating attacks of migraine headache pain. They occurred more frequently than once per month but were not very frequent and prolonged. Functionally, he takes multiple breaks due to the headaches. The October 2019 VA examination noted the diagnosis of post traumatic headaches, treated with medication to include Fioricet/ESGI. Symptoms included head pain on right side occurring less than once per day but reported as constant. There were no non-headache symptoms. The headaches were not characteristically prostrating. They have no impact on the ability to work. To the extent that there are assertions that the symptoms are substantially in excess of the findings on the examination and treatment record as to severity and frequency, the assertions are judged to be not credible. We note that he reported in 2013 and again in 2019 the relative same level of frequency and severity, and there were no functional impairments from the headaches noted at the most recent examination whereas the 2013 exam reflects that he takes breaks and the headaches are tolerable with his medication routine. Given the evidence of record, the Board finds that the Veteran's headaches more nearly approximate a non-compensable rating at all times. The great preponderance of the evidence is against finding that the Veteran experiences migraines with prostrating attacks. The 2019 VA examiner noted the Veteran's assertions and reported his symptoms, duration of pain, and occupational impact, but found that the Veteran's headaches were not productive of prostrating attacks. The 2019 opinion of the VA physician is the most probative evidence on the matter of prostrating attacks; it is well-supported and not inconsistent with the record. The Board finds that the critical assessment as to whether there are prostrating attacks is well-reasoned and supported by reference to the documented record. The Veteran has not produced additional medical records in support of his assertions, and the examiner charged with determining whether there were indeed any prostrating attacks has answered in the negative. Moreover, we are presented with statements to examiners six years apart that are relatively consistent in this regard. Therefore, given the evidence of record, the Board finds that the criteria for a compensable rating under DC 8100 are not met or approximated at any time throughout the appeal period. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. 4. TBI The Veteran seeks a rating in excess of 10 percent for this disability, related to the aforementioned auto accident in 1977. We note that service-connection is in effect for multiple conditions to include unspecified anxiety disorder and as well as post traumatic headaches. TBI is evaluated under 38 C.F.R. § 4.124a, the schedule of ratings for neurological conditions and convulsive disorders, as organic disease of the central nervous system, specifically under Diagnostic Code 8045. TBI residuals are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. DC 8045 Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 is complex and comprehensive, and gives much instruction to the rater, as follows: Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. 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. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, 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. The rater is to evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The rater is to evaluate physical (including neurological) dysfunction 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. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under §4.25 the evaluations for each separately rated condition. 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. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It 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." 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. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. For the facets of memory, attention, concentration, and executive functions, a "0" level of impairment is assigned with no complaints of impairment. A "1" level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A "2" level is assigned with objective evidence on testing of mild impairment. A "3" level is assigned with objective evidence on testing of moderate impairment. A "total" level is assigned with objective evidence on testing of severe impairment. For the facet of judgment, a "0" level of impairment is assigned for normal judgment. A "1" level is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. A "2" level is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. A "3" level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A "total" level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities. For the facet of social interaction, a "0" level of impairment is assigned when social interaction is routinely appropriate. A "1" level is assigned when social interaction is occasionally inappropriate. A "2" level is assigned when social interaction is frequently inappropriate. A "3" level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet of orientation, a "0" level of impairment is assigned when always oriented to person, time, place and situation. A "1" level is assigned when occasionally disoriented to one of the four aspects of orientation. A "2" level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A "3" level is assigned when often disoriented to two or more of the four aspects of orientation. A "total" level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet of motor activity, (with intact motor and sensory system) a "0" level of impairment is assigned for normal motor activity. A "1" level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A "2" level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A "3" level is assigned for motor activity moderately decreased due to apraxia. A "total" level is assigned for motor activity severely decreased due to apraxia. For the facet of visual spatial orientation, a "0" level of impairment is assigned when normal. A "1" level is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system). A "2" level is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS. A "3" level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A "total" level is assigned when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. For the facet of subjective symptoms, a "0" level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A "1" level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light). A "2" level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days). For the facet of neurobehavioral effects, a "0" level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A "1" level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A "2" level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A "3" level is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the facet of communication, a "0" level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A "1" level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A "2" level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A "3" level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A "total" level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs. For the facet consciousness, a "total" level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. The following notes apply to Diagnostic Code 8045. See Notes (1)-(4), 38 C.F.R. § 4.124a, Diagnostic Code 8045. Note (1): 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. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "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. 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. Note (4): 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. TBI Analysis The Veteran seeks a higher initial rating than 10 percent for TBI stemming from the claim which was granted in the June 2013 rating decision, effective from September 21, 2011. He had an examination for his TBI in June 2013. The examiner diagnosed with a TBI related to the in-service accident. The 2013 examination report supports a level of severity of "1" is for memory, attention, concentration, executive functions facet based on a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. A level of severity of "0" is warranted for the judgment, social interaction, orientation and motor activity facets based on a finding of normal for each facet. A level of severity of "0" is also warranted for the subjective symptoms facet based on subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. A level of severity of "0" is also warranted for the communication facet based on: Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. Thus, this 2013 examination report, which was based on examination and treatment records review, is consistent with an overall 10 percent evaluation for traumatic brain injury based on the highest level of severity of "1." Pursuant to our 2018 remand directives, the Veteran underwent another VA TBI examination in October 2019. The Veteran reported he continues to have headaches due to his TBI. The examiner noted mild memory loss, mild neurobehavioral effects and subjective complaints, the latter of which, as will be explained, cannot be used to evaluate as it is used for another service-connected disability. As to Memory, attention, concentration, executive functions, there was a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The Veteran stated that he may forget what he wanted to say to wife and reported that he has decreased concentration and train of thought. Judgement was normal, social interaction was routinely appropriate, and he was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal, as were communication and consciousness. The examiner noted three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. These included headaches with blurred vision, with sound and light sensitivity. The examiner also noted one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. Specifically, the Veteran reported feeling anxiety and getting angry at times. Residuals of TBI were listed as headaches, including Migraine headaches. Other pertinent findings included: Veteran arrived early to exam and reported he drove himself. He was casually dressed and well groomed, answered questions appropriately, recalled recent events (which road he drove to exam) and events dating back to service-indicating normal short term and long term memory. He gave a history that he helps watch grandchildren and drives family member to school. The functional impact of the TBI was assessed as follows: Veteran reports decreased concentration and focus and would get angry at times at work. The examiner stated the headaches with blurred vision, with sound and light sensitivity are related to the TBI. As for the symptoms of forgetting what he wanted to say to wife and decreased concentration and train of thought, along with feeling anxiety and getting angry at times, the examiner state that no one can distinguish if these are due to TBI condition or mental health condition due to overlapping symptoms. As indicated, the Veteran has residuals associated with his service connected TBI and there is some overlap in symptomatology. His headaches and anxiety have been separately rated pursuant to their respective rating criteria. Thus, these disorders and resulting symptoms, may not be used to support an evaluation for TBI. See 38 C.F.R. § 4.14. We find the 2019 VA examiner's assessment to be well-supported and consistent with the treatment record. It is highly probative as to this complex medical issue, the degree of severity of the TBI, and outweighs the general lay argument of the Veteran that his TBI manifestations are more severe. Comparing the Veteran's symptoms during the appeal period to the rating schedule, the Board finds that a higher rating is not warranted. Here, we find level of severity of "1" for Memory, Attention, Concentration, Executive Functions Facet based on a complaint of mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing. This is the only aspect of the TBI that is not overlapping or rated under another DC. Consequently, an overall 10 percent evaluation is continued for TBI based on the highest level of severity of "1". 38 C.F.R. § 4.124a. Accordingly, the criteria for a disability rating in excess of 10 percent for TBI are not met. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases such as arthritis will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 5. Left knee disorder is denied. 6. Left elbow disorder is denied The Veteran urges that he has left knee and left elbow disability due to service or that they had their onset during service. He relates these to multiple sports injuries and the 1977 accident. In our 2018 remand, we noted that with regard to the left elbow and left knee disorders, a September 2015 VA examiner opined that neither disability was a result of service because no acute injury or chronic condition of the left elbow or left knee was found in service treatment records. We ordered remand to get another examination with opinion because lack of a diagnosed disorder in service treatment records alone is not a sufficient rationale. The question for the Board is whether the Veteran has current disability that manifested in service or within any applicable presumptive period or whether a current left knee or left elbow disorder is otherwise related to service. We find that while there is current disability, there was no in-service incurrence or aggravation of a disease or injury nor is there a nexus between current disability and service. First, we note that there is no indication of left elbow or knee involvement in the 1977 accident. Also, there were no elbow or knee complaints at an August 1986 periodic examination. Following service, his left knee was struck by a softball in April 1993 and there was left knee sprain in November 2011. Relevant to the current condition, the 2015 VA examination noted a September 2013 X-ray documented a remote avulsion injury of the left elbow and the Veteran's report of unspecified surgery to the left elbow in the 2000's. It also noted left knee strain, with a negative imaging study as to arthritis of the left knee. VA examination of the left knee and left elbow in October 2019 reflects left elbow pain with tricep tendonitis diagnosed in September 2013. The Veteran reported multiple contusions to the left elbow while playing sports in service. He claimed to have had surgery on left elbow in "about the 2000's." There was no arthritis or evidence of fracture of the elbow on X-ray. The diagnosis as to the left knee was knee joint osteoarthritis, from October 2019. The examiner opined that the left elbow condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale included: as noted on previous opinions, the STR is silent for an in-service left elbow injury. Veteran claims left elbow sprained on several occasions while in service from playing sports, but no traumatic injury. Veteran has recently had surgery to right elbow and makes no claim that condition is service related. It is <50% chance Veteran's current left elbow condition is related to any in-service event. Veteran's left elbow condition is >50% caused by aging and continued use of left elbow in manual labor jobs since retirement in 1992. The examiner opined that the left knee condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The rationale included: As noted on previous opinions, no evidence of left knee injury from active duty. X-ray of left knee in 2009 (17 yrs) after retirement was normal. Veteran's left knee condition is >50% chance caused by normal aging and/or activities engaged in after retirement. Here, there is no arthritis or other enumerated chronic disease of the left elbow. As to the left knee, there is arthritis, as demonstrated in the 2019 VA examination report. This chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a) did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. The VA examiner in 2019 found that this condition first manifested many years following service separation and was not present in service. Also, post service treatment records show no complaints for years after service, with negative X-rays in 2009 and again in 2015. The diagnosis of arthritis is dated in 2019. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). To the extent that the Veteran alleges the arthritis was present in service, and there has been continuity of symptomatology since service, the record is against his assertions. His assertions are outweighed by the intervening normal X-rays. The Board accords substantial probative weight to the competent medical evidence, the treatment records and the 2019 examiner's opinion. The Veteran's lay assertions are outweighed by this evidence. The great preponderance of the evidence is also against finding that a nexus exists between the Veteran's left knee or left elbow disorder and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the Board notes that these conditions have not been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. None of the treatment records contains an opinion that the left knee or left elbow disorder is related to service. The opinion of the October 2019 VA examiner is supported by a rationale that was sound and fully considered the evidence of record. The examiner noted that the conditions were more likely due to enumerated non-service-related reasons. While the Veteran believes left knee and left shoulder disorders are related to service, his lay opinion as to a nexus is outweighed by negative treatment record as to both claims and the well-supported opinion of the VA examiner in 2019. There is no competent/credible evidence that either condition is related to service. The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The great preponderance of the evidence weighs against finding that the conditions were occurred in or are otherwise related to service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.