Citation Nr: A21020018 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 191213-49928 DATE: December 15, 2021 ORDER Entitlement to a 10 percent rating for residual scar, right forearm, is granted. Entitlement to an increased rating in excess of 70 percent disabling for major depressive disorder with anxious distress to include traumatic brain injury (TBI), which is currently 70 percent disabling, is denied. REMANDED Service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The evidence is in equipoise that the residual scar, right forearm, is painful, but is not of the head, face, or neck, is not deep and nonlinear, is not associated with underlying soft tissue damage and it does not cover an area or areas of 144 square inches or greater. 2. The severity, frequency, and duration of the symptoms of the Veteran's major depressive disorder with anxious distress to include TBI did not more closely approximate total occupational and social impairment for any portion of the rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for residual scar, right forearm, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. [The criteria for a disability rating in excess of 70 percent for major depressive disorder with anxious distress to include traumatic brain injury (TBI), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a.,4.126, 4.130, Diagnostic Codes 9434, 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) from an April 2019 Department of Veterans Affairs (VA) regional office (RO) decision which denied a compensable rating for a residual scar, right forearm; denied a rating in excess of 70 percent disabling for major depressive disorder with anxious distress to include traumatic brain injury (TBI) and denied service connection for sleep apnea claimed as secondary to the service connected major depressive disorder with anxious distress to include TBI. In December 2019 the Veteran filed a notice of disagreement (NOD) VA Form 10182, Decision Review Request: Board Appeal, and elected the Evidence Submission docket and specifically disagreeing with the April 2019 rating. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Prior to appealing the April 2019 rating decision, the Veteran filed a supplemental claim in August 2019 again alleging entitlement to a rating in excess of 70 percent disabling for major depressive disorder with anxious distress to include TBI and entitlement to service connection for sleep apnea claimed as secondary to the service connected major depressive disorder with anxious distress to include TBI, as well as other claims. The RO in pertinent part continued a 70 percent rating for major depressive disorder with anxious distress, to include TBI in a November 2019 rating. The Veteran subsequently requested a higher level review of the November 2019 rating's denial of the rating in excess of 70 percent for the major depressive disorder with anxious distress, to include TBI in an October 2020 VA Form 20-0996 Request for Higher Level Review. Development of the higher level review request remains pending, with an informal conference dated in February 2021 noting that he continued to desire a rating in excess of 70 percent. However, the higher level review of the November 2019 rating has not taken place. The April 2019 rating remains on appeal and the Veteran has not changed the appeal lane. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of increased rating for residual scar, right forearm, and the psychiatric disorder, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Regarding the service connection claim, as the Board is remanding this for further development, this additional evidence will be considered by the RO in the adjudication of those claims. The Board notes that a December 2020 claim for total disability due to individual unemployability due to service connected disability (TDIU) alleged that his TDIU was due to the service-connected major depressive disorder with anxious distress to include TBI. This has been adjudicated in an April 2021 rating decision that was separately appealed by the Veteran in June 2021. The TDIU claim is being adjudicated in a separate Board decision. Therefore, the Board shall not consider TDIU when adjudicating the increased rating claims. The Board further notes that the Veteran's representative submitted a brief in September 2021 expressing a willingness to withdraw all other appealed claims if the TDIU claim is granted. However, as this is not a definitive withdrawal of the claims on appeal as it is contingent on the outcome of another decision to be decided, the Board shall continue to adjudicate this matter regardless of the ultimate outcome of the TDIU appeal. General Criteria for Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 ; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Other than the contentions specifically addressed below, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to his increased rating claims. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Evaluation of residual scar, right forearm, which is currently 0 percent disabling, is continued. The Veteran contends that he is entitled to a compensable rating for a residual scar of the right forearm. The scar is rated under Diagnostic Code 7802. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In this matter, the claim on appeal was filed in December 2018, after the criteria was amended. Thus, only the current version of the rating schedule is applicable. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. Medical treatment records from the pendency of the appeal and reviewed by the April 2019 rating show no evidence of issues with the right forearm. There was no additional medical evidence submitted within the 90 day evidentiary window on or after the Veteran filed a NOD in December 2019. However, the Veteran alleged pain, tenderness, and itchiness of the scar in the December 2019 NOD. The report of a March 2019 VA examination (entered 4/19) diagnosed a residual scar, right forearm. The history of injuring his hand by putting it through a glass windshield was noted. The scarring was stable since the injury with multiple areas covering 4 centimeters x 7 centimeters. The scarring was is not painful, nor unstable with frequent loss of covering of the skin over scar, nor was a burn scar, and was not of the head, face, or neck. The scar was on the right upper extremity at the right flexor aspect of forearm, a single scar measuring 4 centimeters x 7 centimeters. The summary of scar findings was approximately 28 square centimeters. It resulted in no limitation of motion. No other findings were reported and there was no functional impact on his ability to work. The Board finds that with application of reasonable doubt, the lay evidence in the December 2019 NOD alleging a painful, tender, and itchy scar warrants a 10 percent rating but no more under Diagnostic Code 7804, which provides that one or two scars that are unstable or painful scars warrants a 10 percent rating. The Board concedes that this statement conflicts with the findings from the March 2019 examination which found the scar to be non-painful and stable. However, the Veteran is competent to report observable symptoms, to include that of pain and tenderness and his reports are considered credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran's right wrist scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges the Veteran's belief that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, he is competent to report observable symptoms and reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, his lay statement has been considered in granting a 10 percent rating. He does not assert, and medical records do not show, that the scarring is manifest by three or four scars that are unstable or painful. There is also no functional loss or limited motion shown. In conclusion, the Board finds that the balance of the evidence supports a 10 percent rating but no more for the right wrist scarring, with the preponderance of the evidence against a disability rating in excess of 10 percent for the right wrist scar. In granting a 10 percent rating, the Board finds the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Evaluation of major depressive disorder with anxious distress to include traumatic brain injury (TBI), which is currently 70 percent disabling, is continued. The Veteran contends that he is entitled to a rating in excess of 70 percent disabling for major depressive disorder with anxious distress to include TBI. In the April 2019 rating on appeal, his psychiatric disability was classified as major depressive disorder with anxious distress to include TBI, with the RO pointing out that the findings from the VA examiners included a diagnosis of TBI which was added to the diagnosis of major depressive disorder with anxious distress due to an inability to distinguish between the symptoms of the psychiatric disorder and TBI. Throughout the period on appeal, the Veteran is in receipt of a 70 percent rating for his major depressive disorder with TBI. The RO has evaluated the disability under 38 C.F.R. § 4.124a, Diagnostic Code 9434 for major depressive disorder. However given the diagnosis of TBI added to the service connected psychiatric disability, the Board most determine whether a separate rating under Diagnostic Code 8045 for TBI is also warranted. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions include 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. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to 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 a Traumatic Brain Injury Not Otherwise Classified" table. In the instant case, the Veteran has not been assigned a separate rating for any disorder related to TBI. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 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 Traumatic Brain Injury Not Otherwise Classified." VA 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 a TBI. For residuals not listed in 38 C.F.R. § 4.124a , Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate Diagnostic Code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. VA should 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. The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a 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." 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. A 100 percent rating is assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage rating 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. For example, a 70 percent rating is assigned if 3 is the highest level of evaluation for any facet. The table titled "Evaluation Of Cognitive Impairment And Other Residuals of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) 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; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) 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; (2) 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; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) 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 or activities. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) 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); (2) 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; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) 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. Subjective symptoms are assigned numerical designations as follows: (0) 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; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or 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; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or 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. Neurobehavioral effects are assigned numerical designations as follows: (0) 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 likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) 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. Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) 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. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, DC 8045. Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury 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" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A veteran whose residuals of a TBI are rated under a version of 38 C.F.R. § 4.124a , Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review. VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a , Diagnostic Code 8045. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability is productive of 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. 38 C.F.R. § 4.130, Diagnostic Code 9423. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, 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 on the basis of social impairment. The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Turning to the evidence of record, treatment reports from the pendency of the appeal and reviewed by the April 2019 rating show long term psychiatric treatment with psychotherapy from 2009 to 2016, for symptoms including anxiety, mood disorder, anger with impaired impulse control, short term memory problems, and panic attacks. There was no additional medical evidence submitted within the 90 day evidentiary window on or after the Veteran filed a NOD in December 2019. The report of a March 2019 VA psychiatric disorders examination (entered 4/19) diagnosed Major Depressive Disorder, Moderate, Recurrent, with Anxious Distress. He also had a diagnosed TBI. However, the examiner stated that it is not possible to differentiate symptoms from TBI and SC disability due to significant symptom overlap. The examiner determined the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner did not check off the Veteran as having total occupational and social impairment. Due to significant symptom overlap, it is not possible to differentiate which portion of occupational and social impairment is attributable to which diagnosis The Veteran reported that his mental health symptoms have worsened. He also reported that he is prescribed OxyContin for pain and reported that he believes that he is addicted to the medications and would like to go to rehab to address this concern. He reported symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks, disturbances of motivation and mood, and inability to establish and maintain effective relationships. However, the Veteran did not have symptoms checked off such as suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, disorientation to time or place. Physical examination revealed the Veteran to be casually dressed. His hygiene was adequate and he appeared his stated age. He was very cooperative. His mood was dysthymic, and his affect was mood congruent. Thought processing was goal-directed and coherent. There were no auditory or visual hallucinations, or delusions. Cognitively, he was alert and fully oriented. His gross memory functions were intact. Insight and judgment are fair. The examiner opined that the Veteran continues to meet the DSM-5 diagnostic criteria for Major Depressive Disorder with Anxious Distress based on the number, frequency, and severity of his symptoms. He experiences sadness and anxiety on a daily basis. Veteran reported decreased mood reactivity, decreased motivation, and avoidance behaviors. The Veteran reported that he continues to have mild memory loss and short-term memory issues. He did not sleep consistently and was consumed by chronic symptoms of depression that directly interfere with working memory at this time. The Veteran reported that memory issues have worsened. He noted that he misses many appointments on a regular basis and stated that he "is not able to catch up with life." The Veteran denied any current suicidal ideation, plans, means and/or intent. The examiner did not believe this Veteran should be considered a current imminent or increased risk. The examiner remarked that the diagnosis of major depressive disorder, moderate, recurrent with anxious distress is a better representation of the Veteran's current condition. In relation to the Veteran's Adjustment Disorder, the disorder was related to the Veteran's difficulties of adjusting to the passing of his wife who had cancer in 2015. She subsequently passed away. The diagnosed Adjustment Disorder was an appropriate diagnosis at that time, as it was directly related to the loss of the Veteran's wife and the associated grief (based on medical records). Typically, a diagnosis of Adjustment Disorder is capped at 1 year. The current diagnosis of Major Depressive Disorder is viewed as the best representation of the Veteran's overall mental health at this time. Symptom differentiation is not feasible due to significant symptom overlap. The report of a March 2019 TBI VA examination (received in April 2019) diagnosed TBI in March 2019. Evidence comments of January 7, 2014 with complaints of memory issues, memory loss times 5-6 years, no headaches, history of head injury when in Navy in 1998. TBI screening was negative. For the claimed TBI he reported the onset was 1998 with details of the onset of having hit his head frequently while aboard ship and reported one time he split his head open and lost consciousness for several minutes and was bleeding. He reported having been told he had a concussion and had abnormal vision when he woke up. He was also confused on awakening and started having headaches bilaterally. Lately his headaches improved. His current symptoms included tinnitus, which he did not recall if this started before after the injury. There was no change in vision or hearing. Dizziness more so now than at that time, occurred about once weekly. He complained about poor memory and said he would get angry that he can't remember anything. His significant other was with him and stated he forgets everything she tells him. He cannot remember what he read online, or an article, he will forget things that he saw. He reported sometimes having no idea where he is, or where he is going when driving. He had no trouble following a map or a GPS. Because of his anxiety, he had difficulty focusing. If he is not interested, he cannot focus at all. He reported having insomnia, he slept about 3 hours per night and had difficulty staying asleep. He also had obstructive sleep apnea and does not wear CPAP. He was a launch and recovery mechanic. He was always going to work late in the morning because he has insomnia, and frustrated because he has so much anxiety. Regarding medications he tried Paxil in the military, he took it for about 6 years, but then stopped working. He tried another medication post service at the VA where he was put on Effexor which made him feel weird and loopy. He stopped taking medication due to Crohn's disease. Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulted in mild functional impairment. His judgment was normal and social interaction was routinely appropriate. He was occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. He occasionally will drive somewhere and not know why, where he is, or why he went to a specific location. His motor activity normal. Visual spatial orientation was normal. He had 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. Insomnia and anxiety interfere with work, he will call out of work about once weekly due to these symptoms. Neurobehavioral effects including the Veteran ignoring stressful situations. For example, if there is paperwork or a bill that is important or an issue within the family, he will ignore it. He was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language). He had normal consciousness. He had no residuals of any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI (such as migraine headaches or Meniere's disease). No other pertinent findings (like scars) were noted, and no other significant diagnostic testing was done. Memory difficulties precluded the Veteran from operating functionally at work. His anxiety and insomnia/fatigue impact his ability to work more so than any other factors related to his TBI. The examiner further noted that headaches are not due to TBI, since headaches were not present after the injury, citing to a January 2014 record which noted memory issues but not headaches and history of head injury in 1998. Tinnitus was due to loud noise exposure. Dizziness did not occur after the head injury, it is a recent symptom, thus it is not due to the TBI. The criteria to support a TBI claim were of loss of consciousness in 1998. Regarding symptoms of diagnosed TBI and a coexisting separate psychiatric condition, the examiner addressed whether it was possible to differentiate symptoms. The examiner noted the Veteran's diagnosis of Major Depressive Disorder, Moderate with Anxious Distress on a Psychological evaluation dated 03/26/2019. Anxiety causes daytime fatigue. Both anxiety and fatigue impact the Veteran's ability to concentrate and retain new information. However, it is not possible to differentiate or quantify the effects of the TBI on his memory alone, as there is a second, confounding diagnosis. The Veteran does clearly have difficulty with memory. However, symptom differentiation is not feasible due to significant symptom overlap. Initially, the Board notes that the Veteran's major depressive disorder with anxious distress and TBI are manifested by symptoms that cannot be clearly separated as confirmed by both the March 2019 VA examinations for TBI and the psychiatric disorder. During the entire period on appeal he is already in receipt of a 70 percent disability rating for his psychiatric disorder and TBI, which have been evaluated together. Thus, to award the Veteran a separate increased rating for his TBI based on any psychiatric symptoms would constitute impermissible pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. The Board further finds that there are no other subjective or physical residuals related to the Veteran's TBI. Although the Veteran reported headaches, dizziness and tinnitus, the VA examiner in the March 2019 VA TBI examination specifically stated that these were not due to TBI and provided adequate rationale to explain why this was so. Otherwise, the examination showed no evidence of 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. There is no medical evidence reviewable by the Board within the evidentiary windows to contradict the findings from the March 2019 VA examiner regarding the residuals of TBI. The March 2019 VA psychiatric disorders examination likewise confirmed that the symptoms of the psychiatric disorder and TBI ae fully overlapping. Therefore, the Board finds that it is not possible to differentiate the symptoms and manifestations of his major depressive disorder and TBI. A higher rating based on the TBI symptomatology is not warranted here. There is no showing of objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Likewise, the findings of record do not demonstrate severe impairment in judgment as defined under Diagnostic Code 8045. Nor is the Veteran's social interaction inappropriate most or all of the time. As discussed more below, total impairment of orientation has not been demonstrated and motor activity is not severely decreased due to apraxia. Severe visual spatial orientation is not at issue here. There is also no total inability to communicate and there is no impairment of consciousness. Finally, the evidence does not establish 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. In short, a higher rating based on application of the TBI criteria is not warranted here. The Board will next consider the General Rating for Mental Disorders, under which the Veteran is currently evaluated as a 70 percent rating, including social and occupational impairment with deficiencies in most areas due to symptoms including panic attacks, sleep impairment, impulsivity during periods of high stress, difficulty adapting to stressful circumstances and inability to establish and maintain effective relationships. This is shown by the findings in the March 2019 VA examinations which revealed issues with sleep, anxiety, decreased motivation, and avoidance behaviors, as well as chronic symptoms of depression that directly interfere with working memory and cognitive function. However, the Veteran did not have symptoms checked off that would more closely resemble a 100 percent rating, such as suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, disorientation to time or place. Although he did at times report periods of disorientation due to memory issues while driving, such episodes were correctable by his use of directional devices and do not more closely resemble the level of impairment contemplated by a 100 percent rating. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. As pointed out in the Introduction, the Board declines to address entitlement to TDIU at this time, as that appeal will be addressed in a separate decision under the AMA at a later date. REASONS FOR REMAND Service connection for sleep apnea is remanded. The Board finds that remand is required to correct a pre-decision duty to assist error. Specifically, the March 2019 (received in April 2019) VA examiner opined that the Veteran's sleep apnea is less likely than not proximately due to or the result of his service-connected psychiatric disorder of major depressive disorder with anxious distress to include traumatic brain injury (TBI). However, the examiner's opinion did not address the aggravation prong of secondary service-connection. See Allen v. Brown, 7 Vet. App. 439, 449 (1995) (stating that "caused by" and "related to" do not address the aggravation aspect of secondary service connection). Therefore, an addendum opinion is needed. The matters are REMANDED for the following action: Obtain a VA medical opinion addressing whether it is at least as likely as not (a 50 percent probability or greater) the currently diagnosed obstructive sleep apnea was aggravated (worsened beyond natural progression) by his major depressive disorder with anxious distress to include traumatic brain injury (TBI). If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.