Citation Nr: 21006274
Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 19-01 328
DATE: February 3, 2021

ORDER

Service connection for a respiratory disability, including chronic obstructive pulmonary disease (COPD) is denied.

Service connection for hearing loss of the right ear is denied.

Service connection for a right ankle disability is denied.

An evaluation in excess of 50 percent for obstructive sleep apnea is denied.

An evaluation in excess of 30 percent for an acquired psychiatric disorder is denied.

An evaluation in excess of 10 percent for a left ankle disability is denied.

An evaluation in excess of 10 percent for a right knee disability is denied.

An evaluation in excess of 10 percent for tinnitus is denied.

A 10 percent evaluation for a right index finger metacarpal fracture is granted.

A compensable evaluation for a right ring finger metacarpal fracture is denied.

A compensable evaluation for a left ear hearing loss disability is denied.

A compensable evaluation for a positive tuberculosis skin test is denied.

A 10 percent evaluation for hypertension is granted.

A compensable evaluation for hemorrhoids is denied.

A compensable evaluation for scars of the right knee, left ankle, and tailbone is denied.

A compensable evaluation for hidradenitis suppurativa is denied.

A compensable evaluation for a traumatic brain injury (TBI) is denied.

A 30 percent evaluation for tension headaches is granted.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted.

REMANDED

Service connection for irritable bowel syndrome (IBS) is remanded.

An evaluation in excess of 10 percent for a left knee disability is remanded.

FINDINGS OF FACT

1. The Veteran does not have a current respiratory disability, including chronic obstructive pulmonary disease (COPD).

2. The Veteran’s audiological test results do not meet the threshold for a current right ear hearing loss disability for VA compensation purposes.

3. The Veteran does not have a current right ankle disability.

4.  The Veteran’s sleep apnea does not manifest as chronic respiratory failure and does not require a tracheostomy.

5. The severity, frequency, and duration of the Veteran’s acquired psychiatric disorder symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity.

6. The Veteran’s left ankle disability manifests as no more than moderate limitation of motion of the ankle.

7. The Veteran’s right knee disability manifests as limitation of flexion not approximating 30 degrees or worse.

8. The Veteran is in receipt of the maximum evaluation for tinnitus.

9. The Veteran’s right index finger metacarpal fracture manifests as pain on motion.

10. A compensable evaluation for a right ring finger metacarpal fracture is unavailable under the Rating Schedule.

11. The Veteran’s left ear hearing loss disability manifests as Level I hearing loss.

12. Despite a positive tuberculosis skin test, the Veteran is asymptomatic.

13. The Veteran’s hypertension requires continuous medication for control.

14. The Veteran’s hemorrhoids are productive of mild or moderate symptomatology.

15. The Veteran’s scars of the right knee, left ankle, and tailbone are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04.

16. The Veteran’s hidradenitis suppurativa did not require treatment within one year of the appeal period and there were no symptoms manifest during the appeal period.

17. A TBI  did not manifest in symptomatology not otherwise addressed by separate evaluations.

18. The Veteran’s tension headaches manifest as characteristic prostrating attacks occurring on an average once a month over the last several months.

19. The Veteran is unable to secure or follow a substantially gainful occupation due to several service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for service connection for a respiratory disability, including chronic obstructive pulmonary disease (COPD) have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for hearing loss of the right ear have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

3. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4.  The criteria for an evaluation in excess of 50 percent for obstructive sleep apnea have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6847.  

5. The criteria for an evaluation in excess of 30 percent for an acquired psychiatric disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9422.

6. The criteria for an evaluation in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. 

7. The criteria for an evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260.

8. The criteria for an evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260.  

9. The criteria for a 10 percent evaluation for a right index finger metacarpal fracture have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5229.

10. The criteria for a compensable evaluation for a right ring finger metacarpal fracture have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230.

11. The criteria for a compensable evaluation for a left ear hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100.

12. The criteria for a compensable evaluation for a positive tuberculosis skin test have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88b, Diagnostic Code 6311.

13. The criteria for a 10 percent evaluation for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101.  

14. The criteria for a compensable evaluation for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336.

15. The criteria for a compensable evaluation for scars of the right knee, left ankle, and tailbone have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805.

16. The criteria for a compensable evaluation for hidradenitis suppurativa have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7820.

17. The criteria for a compensable evaluation for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8045.

18. The criteria for a 30 percent evaluation for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.

19. The criteria for entitlement to a TDIU have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 2003 to March 2016.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In his January 2017 notice of disagreement, the Veteran appealed the effective dates set for all service-connected disabilities.  The Veteran did not perfect the appeal as to these issues.  Accordingly, they are no longer on appeal.  

During the course of the appeal, the Veteran submitted a VA Form 21-22 appointing the Veterans of Foreign Wars as his representative.  This VA Form 21-22 revoked the previous form submitted to appoint a private attorney.  The VFW subsequently notified VA it could not represent the Veteran.  The Veteran was notified of a representation discrepancy and informed that if he did not submit a valid appointment form for his representative of choice, he would be considered unrepresented.  The Veteran did not submit any further forms.  

VA’s Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The duty to notify in this case was satisfied by a letter or letters sent to the Veteran in September 2015 by a form entitled “Notice to Veteran of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits” for which the Veteran acknowledged receipt.  38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The claim was last adjudicated in November 2018.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d).  This “duty to assist” contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In that regard, the Veteran’s service treatment records, VA treatment records, a private evaluation, and lay statements have been associated with the record.  

In September 2015 and October 2015, VA afforded the Veteran examinations and obtained a medical etiological opinion with respect to the service connection claims.  The VA examiners reviewed the evidence of record, considered the Veteran’s history and statements, and rendered medical opinions based upon the facts of the case and the examiners’ knowledge of medical principles.  

In September 2015 and October 2015, VA afforded the Veteran examinations with respect to his increased rating claims.  The VA examiners reviewed the evidence of record and considered the Veteran’s history and statements. The examiners described the disabilities in sufficient detail to enable a fully informed rating. Therefore, the Board finds that the Veteran has been provided adequate medical examinations in conjunction with his claims.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009).

Service Connection

1. Service connection for a respiratory disability, including chronic obstructive pulmonary disease (COPD).

The Veteran submitted a claim for service connection listing COPD as one of the disabilities he was claiming.  The Veteran contends that his medical records show why service connection is warranted

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current diagnosis of COPD or another chronic respiratory disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The October 2015 VA examiner evaluated the Veteran and determined that the Veteran did not have a respiratory disorder.  The Board notes that the claims file shows a diagnosis of COPD in March 2008 based on pulmonary function tests (PFT) showing a moderate obstructive defect.  However, as the October 2015 VA examiner pointed out, the March 2008 PFT record belongs to the Veteran’s father who is a retired service-member and has COPD and the diagnosis was erroneously made based on that record.  The March 2008 PFT record shows a date of birth in 1952, making the individual much older than the Veteran.  

VA treatment records show the Veteran denied chest pain, cough, and shortness of breath in October 2018.  In a November 2017 VA treatment record, the Veteran complained of increased shortness of breath with activity, but his complaint was in the context of treatment for nasal and chest congestion.  At the time, lungs were clear to auscultation.  Treatment records consistently show on treatment examination that lungs were clear to auscultation and that the Veteran denied cough, wheezing and shortness of breath.  Treatment records show no medications prescribed for COPD and no treatment for COPD.  A problem list entry showing COPD has a question mark beside it.  The most credible and probative evidence in this case are the physical examination findings of the treatment records, the date of birth shown on the pulmonary function test showing COPD, and the VA examination report.  These are specific records that show a mistake had been made in associating the Veteran’s father’s record with the Veteran’s service treatment records.  The VA treatment problem list entry of COPD does not identify the basis for the finding of COPD and is contrary to the overwhelming majority of the evidence.  Accordingly, the Board finds the Veteran does not have COPD, and the claim must be denied.

While the Veteran listed COPD in his September 2015 claim, in the September 2015 VA examination, he reported that he didn’t know he had COPD.  The Board finds the VA medical examiner’s findings more credible and probative than the Veteran’s assertion on his claim form and other lay statements that he had or has COPD.  The medical examiner came to his conclusion after clinical evaluation of the Veteran based on medical principles.  The Veteran, on the other hand, is not shown to have formed his conclusion on a similar basis.  It appears the Veteran has repeated the error made by the service treatment professionals of interpreting the Veteran’s father’s test results.  As the preponderance of the evidence is against a finding that the Veteran has a current respiratory disability, including COPD, the claim must be denied.  

2. Service connection for hearing loss of the right ear.

The Veteran seeks service connection for a right ear hearing loss disability.  The Veteran contends that his medical records show why service connection is warranted.

The question for the Board is whether the Veteran has a current disability as defined by VA regulations that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321.  His VA examination shows no right ear hearing loss disability as defined by VA regulations.

The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155 (1993).  However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In this case, a September 2015 VA audiology examination report showed puretone thresholds, in decibels, were as follows:

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	20 	15 	10 	20 	20 

LEFT	20 	10 	25 	45 	25 

 

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC word list.  

The right ear does not qualify as a disability for VA purposes based on the puretone thresholds and the speech recognition ability.  While the Veteran is competent to report decreased hearing acuity, the determination of a current hearing loss disability is derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consequently, the Board gives more probative weight to the audiometric testing evidence.

3. Service connection for a right ankle disability.

The Veteran seeks service connection for a right ankle disability.  In the September 2015 VA examination, the Veteran reported that since he had left ankle surgery, he developed pain in the right ankle.  The Veteran contends that his medical records show why service connection is warranted. 

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the Veteran does not have a current disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321.

The October 2015 VA examiner reported a normal examination of the right ankle.  Range of motion was normal and no pain was noted on the examination.  There was no pain on weight-bearing, no tenderness or pain on palpation, and no crepitus. The Veteran denied flare-ups.  The examiner found no functional loss with repeated use over time.  Muscle strength was normal.  Instability or dislocation of the right ankle was not suspected.  The Veteran did not use an assistive device for his right ankle. 

An April 2016 VA treatment record notes the Veteran has pain in his ankles.  However, an April 2016 occupational therapy note reports pain in the left ankle.  Although an April 2017 treatment record notes the Veteran reported chronic ankle pain, the statement as vague as to whether it refers to the left or the right ankle.  A September 2018 treatment record reported intermittent left ankle pain. 

The Board finds that the Veteran’s right ankle pain does not rise to the level of a functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  The September 2015 VA examination showing all functioning was normal and no pain on the examination is highly probative in this regard.  Further, the Veteran denied flare-ups and the examination was conducted after repeated use over time.  Beyond the examination, there are only occasional and vague references in the treatment records to pain in the ankles.  More often than not, the pain is noted to be in the left ankle for which the Veteran is service connected.  There is no indication that the clinicians noting the reports of pain in both ankles performed tests to confirm the presence of the pain or to determine if the pain functionally impaired earning capacity.  

Although a November 2017 private medical report is of record stating that the Veteran cannot walk more than 10 yards before pain in his knees and ankles causes him to have to sit and rest, the physician did not examine the Veteran.  Thus, he did not confirm whether there is any right ankle disability actually present.  The examiner’s lumping together the knees and ankles is too vague a report to establish the presence of a right ankle disability on its own. 

The Veteran also has not provided a lay statement describing how his right ankle causes functional impairment of earning capacity.  

The Board acknowledges a September 6, 2018 entry in VA treatment records showing past bilateral ankle surgery, but this appears to be a mistake as the vast majority of other records specify the Veteran had left ankle surgery only.  Significantly, the VA examiner reported no surgery on the right ankle.  This report is more persuasive as the examiner was specifically evaluating the ankle for service connection.  Therefore, the Board has more confidence that appropriate attention was paid to the receiving and recording of the information from the Veteran.  As there is no current disability established, the claim must be denied.

Increased Rating

4. An evaluation in excess of 50 percent for obstructive sleep apnea

The Veteran seeks a higher evaluation for his service-connected sleep apnea.  The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.  In a March 2019 brief by the Veteran’s former attorney, the attorney pointed to the October 2015 VA examination in which the Veteran reported that even with a CPAP machine, at times the Veteran still does not sleep well.

The Veteran’s sleep apnea is evaluated under Diagnostic Code 6847, Sleep Apnea Syndromes (Obstructive, Central, Mixed).  Under this Diagnostic Code, a 100 percent evaluation is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy.  A 50 percent evaluation is warranted where sleep apnea requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine.

On a review of the evidence, the Board finds the disability picture does not more nearly approximate that of a higher evaluation.  The October 2015 VA examiner found that the Veteran did not currently have any findings, signs or symptoms attributable to sleep apnea.  The examiner reported that the Veteran uses a CPAP machine with some help however still does not sleep well due mostly to “BH” issues, which could be a reference to bowel habits.

VA treatment records show no chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the requirement for a tracheostomy.  In fact, as discussed under the COPD issue above, respiration showed no difficulty.  The Veteran has not asserted that he has chronic respiratory failure or that he requires a tracheostomy.  As the elements for a higher evaluation are not established or more nearly approximated, the claim must be denied.

5. An evaluation in excess of 30 percent for an acquired psychiatric disorder

The Veteran contends that he is entitled to a higher rating for his acquired psychiatric disorder because his medical records show why a higher rating is warranted for the service-connected conditions.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 

The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher.

The Board concludes that the Veteran’s symptoms do not cause the level of impairment required for a disability rating of 50 percent or higher.  The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating.

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

On this record, the October 2015 VA mental disorders examination shows a diagnosis of other specified trauma-related disorder.  The examiner summarized the level of occupational and social impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  The examination report shows the Veteran was single with no children.  He reported a “good” relationship with his father with whom he lived, and with his sisters.  He communicated regularly with his mother in Germany.  He reported having one close friend, some acquaintances, and dating relationships “on and off.”  He reported interests included relaxing, watching football, “hang[ing] out with friends,” and going fishing.  His insight and judgment were both “fair.”  

He underwent a VA initial posttraumatic stress disorder (PTSD) examination on the same day as his mental disorders examination, which was conducted by the same examiner.  The examiner found that the Veteran did not have PTSD, and instead had other specified trauma-related disorder.  The other information provided in the report was the same as in the mental disorders examination report. 

Symptoms for rating purposes were anxiety, suspiciousness, and chronic sleep impairment. Sleep impairment includes nightmares and insomnia. The mental status examination showed constricted affect, and the Veteran reported becoming angry quickly.  The Veteran denied suicidal and homicidal ideation.

A September 2015 VA TBI psychology note reported a possibility that the psychiatric disorder could result in transient disruption in the continuity, efficiency and reliability of cognitive processing operations.

VA mental health treatment records in April 2016 show anger, anxiety, sleep and nightmares in the form of road rage and not liking being in large crowds. They also show a flat affect, completion of memory testing with difficulty and having difficulty remembering things like paying bills and appointments.

Records beginning July 2017 show predominantly chronic insomnia, irritability, frequent nightmares, increased startle reflex, hypervigilance, social avoidance, and restlessness.  On occasion, depression, problems with low energy, interest and motivation are noted.

These VA treatment records, the September 2015 VA examination, and the Veteran’s lay statements show that the Veteran’s psychiatric disorder was manifested by symptoms associated with a 30 percent rating, which were depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss.  There were some symptoms associated with a 50 percent rating.  In that regard, on one occasion, the Veteran was reported to have a flattened affect.  He reported having difficulty with motivation.  He also had symptoms that are not listed with a specific rating, such as easy startling, anger, and social avoidance.  

The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating.  See 38 C.F.R. § 4.126.  The Board finds the symptoms of easy startling and social avoidance are similar to anxiety and were essentially labeled as anxiety by the April 2016 provider.  The symptoms of anger and irritability are suggestive of the symptom of impaired impulse control associated with the 70 percent evaluation.  However, the 70 percent criteria contemplate “unprovoked irritability with periods of violence” as an example of impaired impulse control.  The record does not show that the Veteran has irritability that reaches this level of severity.  The description of the Veteran’s anger and irritability shows no violence as is associated with the 70 percent evaluation.  The medical professionals have not found that the Veteran has impaired impulse control when treating the Veteran for his reports of anger.  Thus, the Board finds it to be at the most favorable associated with the 50 percent evaluation. 

The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating.  The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation.  The VA examiner’s opinion in this regard is persuasive.

While the Veteran did experience symptoms contemplated by a 50 percent rating as discussed above (anger, irritability, flattened affect, and lack of motivation), the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating.  As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating.   Except for anger and irritability, the flattened affect and lack of motivation were transient problems.  Flattened affect was only reported on one occasion, although constricted affect was reported more frequently.  Constricted affect was intermittent.  Lack of motivation improved with treatment.  As to anger and irritability, the description provided by the Veteran shows the severity is not commensurate with the severity, frequency and duration of the symptoms associated with the 50 percent evaluation. He reports having anger outbursts, but the reports do not show severe anger or irritability on such a frequency that would cause, for instance, difficulty in establishing and maintaining effective work and social relationships.  The record does not show that his symptoms impair his ability to be productive.  His psychiatric symptoms do not interfere with his ability to be independent in his activities of daily living and he does not require assistance for tasks.  

As the totality of the Veteran’s symptoms do not more nearly approximate the higher evaluations, an increased evaluation is not warranted.

6. An evaluation in excess of 10 percent for a left ankle disability.

The Veteran is service-connected for a left ankle disability status post-surgical correction of the anterior talofibular ligament, calcaneofibular ligament and tenosynovitis.  He seeks an evaluation higher than 10 percent and contends that he still has pain.  He contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions

The Veteran’s left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle.  Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle.  A maximum 20 percent rating is warranted for marked limited motion of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271.

While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VBA’s M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.6.m (last accessed January 6, 2021). The M21-1 is not binding on the Board. See Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017); Overton v. Wilkie, 30 Vet. App. 257 (2018). However, the Board is not free to simply ignore the Secretary’s guidance on an issue. See 38 C.F.R. § 19.5; see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) (“the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.”).

The Board considered the dictionary definition of moderate and marked.  According to Merriam-Webster, “moderate” means “tending toward the mean or average amount or dimension”.  See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”.  See www.merriam-webster.com/dictionary/marked.

In this case, the reliance on the M21 is irrelevant as the Veteran has not shown to have any limitation of motion.  The Veteran’s 10 percent evaluation is derived from the minimum compensable evaluation for pain on motion.  See 38 C.F.R. § 4.59.

On this record, in the October 2015 VA ankle disorders examination, the Veteran reported continued pain after corrective surgery on the left ankle in 2011. He reported having a hard time standing for long periods of time, and does not run or workout, mostly due to his knees.  The October 2015 VA examiner found the range of motion was normal in dorsiflexion and plantar flexion.  The examiner remarked that there was pain on examination, but it does not result in functional loss.  There was no pain with weight bearing, no objective evidence of tenderness or pain on palpation of the soft tissue and no objective evidence of crepitus.  Strength was normal.  The Veteran denied flare-ups.  The examiner found no significant limitation with repeated use over time.  Instability or dislocation was not suspected.  

VA treatment records report chronic left ankle pain.  Range of motion was not provided.

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for his left ankle disability.  The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain.  However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating marked limited motion or limitation so distinctive or emphasized that it would approximate marked limited motion.  

Although a November 2017 private medical report is of record stating that the Veteran cannot walk more than 10 yards before pain in his knees and ankles causes him to have to sit and rest, the physician did not examine the Veteran.  Thus, he did not confirm the severity of the ankle disability with any specifics beyond pain.  The examiner’s lumping together the knees and ankles is too vague a report to establish the degree of functional impairment of the left ankle disability on its own. 

The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating.  However, the evidence does not reflect the presence of ankylosis, malunion of os calci or astragalus, and the Veteran’s surgery was not an astragalectomy.  Thus, no other Diagnostic Code for the ankle applies.  See 38 C.F.R. § 4.71a.  He does not have instability of the left ankle. 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for his left ankle disability.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

7. An evaluation in excess of 10 percent for a right knee disability. 

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.  

The Veteran’s knee is rated under Diagnostic Code 5003-5260.  This indicates the disability with osteoarthritis is being rated based on limitation of motion.  Under Diagnostic Code 5260 for limitation of flexion, 

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.  Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion.  38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims).  

Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259).  See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017).  

Range of motion testing was performed during the October 2015 VA examination and was 140 degrees of flexion and 0 degrees of extension.  At the examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use.  The report does not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements.  In that regard, the Veteran reported pain up to a level 9 and that he wears a brace frequently and attended therapy twice per week.  He denied flare-ups.  There was no pain on weight bearing. Repetitive use over time showed no additional loss of range of motion.

The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating or a rating based on limitation of extension.  Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.  

Treatment records do not show greater limitation of motion than the examination findings.  VA treatment records show knee pain; however, they do not address the range of motion.  Treatment records do show it is difficult to exercise due to bad knees.  However, this does not indicate that functional limitation of motion would be to 30 degrees, or a 10 degree limitation in extension.  Given the above, a higher rating based on limitation of flexion or a separate rating for limitation of extension is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261.  The Veteran is being compensated for his painful motion of the right knee joint based on his 10 percent rating under Diagnostic Code 5260.  

Although a November 2017 private medical report is of record stating that the Veteran cannot walk more than 10 yards before pain in his knees and ankles causes him to have to sit and rest, the physician did not examine the Veteran.  Thus, he did not confirm the severity of the knee disability with any specifics beyond pain.  The examiner’s lumping together the knees and ankles is too vague a report to establish the degree of functional impairment of the right knee disability on its own. 

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  

Ratings can also be assigned when the knee disability affects the meniscus.  Specifically, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms.  38 C.F.R. § 4.71a, Diagnostic Code 5259.  

October 2015 VA examination stability testing showed no instability.  There was no recurrent subluxation and no recurrent effusion.  Surgery in March 2015 was an arthroscopy autologous chondrocyte implantation (ACI).

August 2018 VA treatment showed mild effusion at the right knee. The Veteran reported difficulty exercising due to bad knees. He reported being active outside most days, but not walking 2 to 3 times per week for 30 minutes.

“Instability of joint” is shown in the past medical history in September 2018 VA treatment records.  There is no identification of which joint and no context around it.  An October 2018 VA treatment record reported the Veteran wearing braces; however, the October 2018 rehabilitation record shows the Veteran receiving the brace for the left knee, not the right knee.

The Board finds the evidence does not warrant a separate evaluation for knee instability or for a meniscus condition.  As to a meniscus condition, the Veteran’s knee surgery was not a removal of the meniscus and there is no evidence that the Veteran has a dislocated meniscus.

As to instability, the Veteran has not reported experiencing instability of his right knee.  The only joint stability testing of record was at the VA examination and it showed no instability.  While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions.  Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints.  These tests were administered by the medical professionals in this case and revealed no instability or laxity.  Additionally, the VA examiner found that there was no history of subluxation or instability.  Hence, the preponderance of the evidence is against a separate rating for the knee under Diagnostic Code 5257.  38 C.F.R. § 4.71a.

Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263.  Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003).  In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis.  As such, those diagnostic codes are not for application.  

8. An evaluation in excess of 10 percent for tinnitus.

The Veteran seeks a higher evaluation for his tinnitus.  In a March 2019 statement, the Veteran’s former attorney pointed to a September 2015 VA audiological examination in which the Veteran reported that the “ringing or buzzing” in his ears makes it difficult to fall asleep and wakes him up. Tinnitus is defined as “a noise in the ears such as ringing, buzzing, roaring, or clicking.”  Dorland’s Illustrated Medical Dictionary, 1930 (32nd ed. 2012).  The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s tinnitus is rated under Diagnostic Code 6260, 38 C.F.R. § 4.87. For recurrent tinnitus, the maximum schedular evaluation is 10 percent. Note (2) further explains that the Board must assign only a single rating for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. The United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

As the Veteran's service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus for the entire initial rating period since the date of the initial claim, the Board finds there is no legal basis upon which to award a higher schedular evaluation for tinnitus. As such, entitlement to a rating for tinnitus in excess of 10 percent is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the appeal for an increased rating for tinnitus is denied.

His sleep impairment is already contemplated by his rating assigned for his psychiatric disorder.  Additionally, the record does not show that his tinnitus results in a separate psychiatric disability manifested by sleep impairment warranting a separate rating.  The plain language of 38 C.F.R. § 4.130 requires a DSM-5 diagnosis to compensate a psychiatric disability, and the most reasonable interpretation of 38 C.F.R. § 4.125(a) requires the same.  Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020).  His diagnosed psychiatric disability is already service-connected.  

9. A compensable evaluation for a right index finger metacarpal fracture.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s right index finger metacarpal fracture is evaluated under Diagnostic Code 5229.

Diagnostic Code 5229, index or long finger, provides a maximum 10 percent rating (major and minor) for limitation of motion with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees.  A noncompensable rating is provided for a gap of less than one inch between the fingertip and the proximal transverse crease of the palm, or with extension limited by no more than 30 degrees.

The October 2015 VA examination showed all ranges of motion were normal.  There was no ankylosis.  The Veteran reported occasional pain.  There was no gap noted and there was no pain observed on examination.

Nonetheless, the Board finds that the minimum compensable evaluation under 38 C.F.R. § 4.59 is warranted for the Veteran’s credible reports of pain on use.  In this case, the minimum evaluation is 10 percent.  Accordingly, a 10 percent evaluation is warranted.  The 10 percent evaluation is the maximum evaluation.  The evaluations for ankylosis of the fingers do not apply.  Therefore, a higher evaluation is not warranted.  

10. A compensable evaluation for a right ring finger metacarpal fracture.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s service-connected right ring finger disability is rated under Diagnostic Code 5230. Under Diagnostic Code 5230, a maximum zero percent rating is assigned for any limitation of motion of the little finger (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a , Diagnostic Code 5230. Therefore, the Veteran is in receipt of the maximum disability rating available under Diagnostic Code 5230.  

The Board has considered other potentially available Diagnostic Codes. Diagnostic Code 5227 applies to ankylosis of the ring or little finger, whether favorable or unfavorable, and whether on the dominant hand or not. The only available rating under this Diagnostic Code is also noncompensable. 38 C.F.R. § 4.71a, Diagnostic Code 5227.  Otherwise, Diagnostic Code 5010 pertains to traumatic arthritis. Under that code, traumatic arthritis is to be rated as degenerative arthritis. Ratings for degenerative arthritis are to be based on limitation of motion and, if noncompensable by that method, a rating of 10 percent is warranted for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). For rating purposes, a hand is considered a group of minor joints. 38 C.F.R. § 4.45 (f).  

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against an initial compensable rating for the Veteran’s service-connected right ring finger disability. Specifically, the Veteran has been rated at a noncompensable rating for his service-connected right ring finger disability for the entire appeals period. His VA treatment records do not show any complaints of ankylosis or that he has ever received treatment for a finger disability.  The record does not show arthritis of the right ring finger.  The October 2015 VA examiner noted that imaging studies were done but were normal.  

The Board acknowledges the Veteran’s report of limited motion, but the provisions of 38 C.F.R. § 4.59 do not apply when the applicable Diagnostic Code does not provide a compensable rating. Sowers v. McDonald, 27 Vet. App. 472 (2016). Therefore, a compensable rating under Diagnostic Code 5230 is not warranted.

Furthermore, there is no indication that traumatic arthritis is present.  Even if it were, the Veteran is now in receipt of a 10 percent evaluation for the minor joint group without limitation of motion.  Accordingly, a compensable evaluation for the right ring finger is not warranted.

11. A compensable evaluation for a left ear hearing loss disability.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations.  Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  The rating criteria establish eleven auditory acuity levels designated from I to XI.  As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned.  See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019).  Table VIa establishes a Roman numeral designation based only on the pure tone threshold average.  38 C.F.R. § 4.85(c) (2019).  However, Table VIa will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.85(c).

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment.  When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a) (2019).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86(b).

In this case, on the authorized audiological evaluation in September 2015, pure tone thresholds, in decibels, were as follows: 

 	 	HERTZ	 

 	1000	2000	3000	4000	Avg.

RIGHT	15	10	10	20	14

LEFT	10	20	25	45	25

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The results do not present an exceptional pattern of hearing impairment.

Applying the results to Table VI, yields a finding of Level I hearing loss in the left ear.  Because the right ear is not service-connected, that ear is treated as a Level I degree of hearing loss.  38 C.F.R. § 4.85(f).  Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85.

Based on a review of the evidence, the Board finds that a compensable evaluation is not warranted.  A mechanical application of the rating criteria shows the Veteran’s hearing loss disability does not meet the criteria for a higher rating.  In reaching this conclusion, the Board has determined that the VA medical examination is highly probative evidence.  The Veteran’s credible lay statements as to his symptoms are not competent evidence of hearing loss as it conforms to VA rating criteria.  Therefore, the preponderance of the credible evidence is against an increased evaluation.

All the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  The Veteran’s hearing loss disability has manifested in difficulty hearing speech, which causes difficulties functioning in social and occupational environments.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).

12. A compensable evaluation for a positive tuberculosis skin test.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s positive tuberculosis (TB) skin test is evaluated under Diagnostic Code 6311, tuberculosis.  Diagnostic Code 6311 provides for a 100 percent rating for miliary TB, as active disease.  This Diagnostic Code provides that inactive tuberculosis should be rated under 38 C.F.R. §§ 4.88c or 4.89, whichever is appropriate.  Regulation 38 C.F.R. § 4.88c provides ratings for inactive non pulmonary tuberculosis initially entitled after August 19, 1968, and 38 C.F.R. § 4.89 provides ratings for inactive non pulmonary tuberculosis in effect on August 19, 1968. Here, the Veteran was not service-connected for tuberculosis on August 19, 1968. Thus, 38 C.F.R. § 4.88c would be for application. 

Regulation 38 C.F.R. § 4.88c provides that, for one year after date of inactivity, following active tuberculosis, a 100 percent rating is warranted, following which residuals are to be rated under the specific body system or systems affected.

In this case, the October 2015 VA examination reported the positive TB skin test.  The examiner noted the Veteran was asymptomatic.  The positive skin test and blood test were performed in 2010.  He has not been diagnosed with pulmonary or non pulmonary TB.  

VA treatment records show no symptoms or diagnosis of TB.  As discussed under the COPD section above, treatment records consistently show on treatment examination that lungs were clear to auscultation and that the Veteran denied cough, wheezing and shortness of breath.  As there are no symptoms on which to rate the Veteran’s finding of a positive TB test, a compensable evaluation is not warranted.

13. A compensable evaluation for hypertension.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension).  Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.

The term “predominant” is not defined in the rating criteria.  Merriam-Webster defines predominant to mean “being most frequent or common.”  See, e.g., “predominant,” Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant.

For the reasons that follow, the Veteran’s hypertension has manifested in diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, corresponding to the criteria for a 10 percent rating under DC 7101.  Thus, a 10 percent evaluation is warranted.  An evaluation higher than 10 percent is not warranted, however.

The October 2015 VA examination shows the Veteran was diagnosed with high blood pressure in service and was prescribed medication for it.  The examiner stated that at present, blood pressure was under control.  Blood pressure at the examination was 115/80, 108/69, and 111/74.

VA treatment records show a continued prescription for medication for blood pressure.  Blood pressure readings were not greater than 200 for systolic pressure or 110 for diastolic pressure.  

A higher 20 percent rating under DC 7101 is not warranted unless diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more.  Accordingly, the Veteran’s hypertension does not more nearly approximate the criteria corresponding to a 20 percent rating.  A higher 20 percent rating is not warranted.

14. A compensable evaluation for hemorrhoids.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s hemorrhoids are evaluated a noncompensable under Diagnostic Code 7336.  38 C.F.R. § 4.114.  Under Diagnostic Code 7336, a noncompensable rating is warranted when there is mild or moderate symptomatology. A 10 percent rating is warranted when hemorrhoids are large or thrombotic and irreducible, with excessive redundant tissue evidencing frequent recurrences. A 20 percent rating is warranted when there is persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336.

On this record, the October 2015 VA examination showed that the Veteran was seen in 2014 by the surgical clinic and found to have internal and external hemorrhoids.  He underwent a hemorrhoidal banding procedure in 2014. He reported he felt better, and occasionally requires Preparation H or “sit bath.”  The Veteran refused physical examination of the rectal/anal area.

VA treatment records show no reporting of symptoms by the Veteran.  The Veteran did not make any statement describing his symptoms.

On this record, there is no evidence, either medical or lay, that more than moderate symptoms are present.  There is no evidence, either medical or lay, that hemorrhoids are large or thrombotic and irreducible or that there is persistent bleeding, anemia, or fissures.  Accordingly, a higher evaluation is not warranted.

15. A compensable evaluation for scars of the right knee, left ankle, and tailbone. 

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s scars of the right knee, left ankle, and tailbone, are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.

The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018.  However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments.

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code.

The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s scars under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04.  

The October 2015 VA ankle conditions examination showed the scar on the lateral side of the left ankle measured 7 cm length by 0.5 cm width.  It was not painful or unstable.

The October 2015 VA knee examination showed a right knee medial scar 0.5 cm long by 0.5 cm wide, as well as a right knee lateral scar 0.5 cm long by 0.5 cm wide.  Finally, the examination showed a right knee patellar scar measuring 16 cm long.  The Board notes the examiner did not provide a width measurement for this scar.   

The October 2015 VA hemorrhoids examination showed the scar on tailbone area was 12 cm long by 0.3 cm wide.  It was not painful or unstable.

Treatment records do not show scar measurements or that the scars were painful or unstable.

These findings show the area of the Veteran’s scars were as follows.  The ankle scar was 3.5 square cm.  The tailbone scar was 3.6 square cm.  The right knee medial scar was 0.25 square cm.  The right knee lateral scar was also 0.25 square cm.  The right knee patellar scar area cannot precisely be determined because the width is missing.  However, because it is a surgical scar, the Board finds it is reasonable to conclude that it is not at least 2.4 cm in width, which would result in an area of close to 39 square cm.  Rather, it seems more reasonable to conclude that the scar measures closer to 0.5 cm, like the other surgical scars on the knee.

The Board has also considered the other Diagnostic Codes pertaining to scars.  However, the Veteran’s scars are not of the head, face, or neck, making Diagnostic Code 7800 inapplicable.  The scars are not deep and nonlinear, and are not associated with underlying soft tissue damage, making Diagnostic Code 7801 under the previous and current versions inapplicable.  Although the scars are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches (929 square cm) or greater, making Diagnostic Code 7802 inapplicable under both the previous and current versions.  Moreover, the Veteran’s scars not unstable or painful, making Diagnostic Code 7804 inapplicable.  

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, he has not asserted observable symptoms, and he does not assert, and medical records do not show, that the Veteran’s scars are manifest by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04.  He also has not asserted that his scars are painful.  

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his scars.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

16. A compensable evaluation for hidradenitis suppurativa.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.

The Veteran’s hidradenitis suppurativa is evaluated as noncompensable under Diagnostic Code 7820.  Diagnostic Code 7820 addresses infections of the skin.  

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.

Prior to August 13, 2018, Diagnostic Code 7820, instructed to rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability.  38 C.F.R. § 4.118, Diagnostic Code 7820.

Here, the evidence of record demonstrates that the predominant disability is dermatitis.  The Veteran’s disability began as a cyst on the tailbone that was drained.  His scar for this disability has already been evaluated under the Diagnostic Codes for scars.  Since the disability does not affect the head, face, or neck, the Board evaluates the claim under Diagnostic Code 7806.   

Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months.  A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period.  A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period.  Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  38 C.F.R. § 4.118, Diagnostic Code 7806.  

For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.”  Burton v. Wilkie, 30 Vet. App. 286 (2018).  Only the second question need be addressed if the treatment is clearly systemic.  Id.  

Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin.  38 C.F.R. § 4.118(a).

Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824.  See 38 C.F.R. § 4.118.  Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected.  A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period.  A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.  A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.  Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824.

As noted above, in this case the predominant disability is dermatitis under Diagnostic Code 7806.

The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s hidradenitis suppurative does not more nearly approximate at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  

In that regard, the October 2015 VA medical examination showed that the Veteran’s first instance of incision and drainage was in 2004 and his last was in 2014.  He had a total of 5 instances.  The Veteran did not have treatment with oral or topical medications in the prior 12 months.  The Veteran did have less than 6 weeks of treatment in the form of incision and drainage within the prior 12 months.  The treatment occurred in 2014.  The examiner found that the infection of the skin affected no total body area and no exposed area of the skin.

Treatment records show no skin rashes or lesions.  There is no report of recurrence of the hydradenitis suppurativa symptoms, and no report of medications taken for this condition.  

The Board notes that the Veteran was required to have incision and drainage.  However, the last instance of that was in 2014.  The effective date of the award of service connection for this disability is March 2016.  That is more than one-year after the last incision and drainage.  Because the Veteran did not have any treatment after 2014, the incision and drainage does not warrant inclusion in the evaluation. 

Thus, the preponderance of the evidence is also against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s hydradenitis suppurativa does not more nearly approximate (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy(1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period.  

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, he does not assert, and medical treatment records do not show, that the disability more nearly approximates the criteria in the next higher rating.  

The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation.  However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code.  See 38 C.F.R. § 4.118.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for hydradenitis suppurativa.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

17. A compensable evaluation for a TBI

The Veteran contends that he is entitled to a higher rating for his TBI because his medical records show why a higher rating is warranted for the service-connected conditions.

Under Diagnostic Code 8045, there are three main areas of dysfunction listed 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.

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. Adjudicators are to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. 

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to 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, they are 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 TBI Not Otherwise Classified” table. Id. 

Adjudicators are 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, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Id. 

Adjudicators are 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. Id. 

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, adjudicators are to evaluate under the most appropriate Diagnostic Code. Adjudicators are to 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. Id. 

The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” 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. Adjudicators are to assign a 100-percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” adjudicators are to 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. Id.

The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury (TBI) not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately.

At the September 2015 VA examination, the Veteran reported being hit with the mount of a 50-caliber weapon, which resulted in an open laceration, loss of consciousness, constant headache, and ringing in his ears.  The examiner found the Veteran was normal on all facets of TBI-related cognitive impairment and subjective symptoms.

A September 2015 TBI psychology note reported that test scores fell within the anticipated range.  Complaints or any impairment of functioning were not due to TBI, but due to his psychological and emotional disturbance which might result in impairment of the listed TBI facets of cognitive impairment and subjective symptoms, according to the examiner.  The examiner summed the examination up as follows:  

Today’s examination and cognitive test findings found no evidence of enduring (residual) impairment consequent to trauma-related damage to supratentorial structures of the brain.  [The Veteran’s] scores on all challenges fell within the anticipated range.  There was evidence of psychopathological (“functional”) disturbance that could result in transient disruptions in the continuity, efficiency, and reliability of cognitive processing operations.

Treatment records do not show any further complaints of TBI symptoms that are not already addressed by a separately evaluated service-connected disability.  As there are no symptoms, all facets are assigned a 0 level of impairment.  Because the highest level of impairment is 0, a noncompensable evaluation is warranted. 

18.  A compensable evaluation for tension headaches.

The Veteran contends that he is entitled to a higher rating because his medical records show why a higher rating is warranted for the service-connected conditions.  In the September 2015 VA examination, the Veteran reported headaches off and on with the highest pain rating of 8 and an average of a level 4 pain rating, and that headaches last all day, and are affected by stress. 

He also points to the November 2017 private report from Dr. W.B., which stated that headaches would affect both physical and sedentary work, that they progress, and that for relief the Veteran must lied down in a dark room.  He also noted that the Veteran’s headaches can occur up to 4 times a week. 

Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine.  Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. .  A 50 percent rating is the highest schedular rating under DC 8100.

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating.  Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).  This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable.  Johnson, 30 Vet. App. at 252.

The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation.  Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.”  Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The Board concludes that the Veteran’s migraines have occurred with characteristic prostrating attacks averaging one every month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100.  

At the September 2015 VA examination, the Veteran stated his headaches are on-and-off.  The highest pain level is about an 8 out of 10, with the average being a 4 out of 10.  He has pressure in the front with throbbing pain on the top and back of the head.  The headaches last all day.  Bad headaches are more related to stress.  The average headaches are more in the afternoon.

The examiner reported headache pain duration was less than 1 day and 1 to 2 days.  The examiner found the Veteran had characteristic prostrating attacks of headache pain that occurred on average once every month.  The examiner found the Veteran did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability.  The examiner stated that during the severe attack, physical and sedentary employment is affected.

Treatment records show the Veteran was followed by neurology in October 2018.  A note at that time reported that is a follow-up case suspicious of rebound headache secondary to excessive pain killer intake. He also has right occipital neuralgia.  November 2018 VA treatment records show the Veteran had a nerve block.

Dr. W.B.’s November 2017 report shows the Veteran reported headaches up to four time a week and they last all day.  The headaches progress from front to back and are incapacitation, forcing him to recover in a dark room.  Dr. W.B. opined that chronic pain and headaches make physical work impossible.

Considering all relevant evidence of record, the Board finds that the Veteran’s headaches occurred with characteristic prostrating attacks averaging one every month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100.

A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

The rating criteria for a 50 percent rating contain several undefined phrases.  The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating.  Johnson, 30 Vet. App. at 253.  The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless.  Id.  The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.”  Id. (internal citation omitted).  Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.”  Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 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, 445-46 (2004).

The Veteran’s headaches lack the prolonged nature.  Although there was one instance of a headache lasting for a week in August and September 2018, for the remainder of the appeal period, the evidence shows the headaches lasted at most a day.  Furthermore, during the period where there was the prolonged headache, there is no indication is was a prostrating headache.  The Veteran did not report constant powerlessness.  Indeed, the Veteran was able to attend medical appointments during that time.  Thus, the Board concludes that the Veteran did not have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period.  A higher 50 percent rating is not warranted under DC 8100.

19. Entitlement to a total disability rating based upon individual unemployability

In a March 2019 statement, the Veteran’s former attorney raised the issue of entitlement to a TDIU. 

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1).

A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a).  If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age.  38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In this case, the Board finds that a TDIU is warranted based on the combination of the service-connected disabilities of headache, an acquired psychiatric disorder and musculoskeletal disorders.  The November 2017 private medical opinion found that the data as a whole show the Veteran is essentially unemployable from both a mental and physical standpoint.  The examiner stated that the Veteran he has cognition, fatigue and anxiety issues making sedentary work difficult. His chronic pain and headaches make physical work impossible.

On this opinion, the Board finds that the Veteran is unemployable.  The unemployability is based on multiple disabilities, not just one single disability.

REASONS FOR REMAND

1. Service connection for IBS is remanded.

The Board cannot make a fully-informed decision on the issue of service connection for IBS because the evidence is unclear as to whether the Veteran has a current disability.  The Veteran’s November 2015 VA stomach conditions examination report states that he does not have IBS.  However, VA treatment records since the VA examination show a diagnosis of IBS in the active problem consistently over a period of several years.  In April 2016, a VA treatment noted that he had bowel movements two to three times per day and a “problem with diarrhea.”  November 2017 and November 2018 VA treatment records noted IBS with “chronic” diarrhea.  A new VA examination is warranted to determine if the Veteran has IBS and if so, for an opinion as to whether that disability is related to numerous instances of diarrhea in service.  Additionally, as the Veteran served in Iraq, a description of the symptoms is needed.  IBS is a functional gastronintestinal disorder.  38 C.F.R. § 3.317(a)(2)(i)(3).  Therefore it is a medically unexplained chronic multisymptom illness (MUCMI).  For the purposes of establhsing presumptive service connection based on Gulf War service, the evidence needs to show that it manifested during service in the Soutwest Asia theater of popeartions or meets the critea for a 10 percent rating.  38 C.F.R. § 3.317(a)(1)(i).

2. An evaluation in excess of 10 percent for a left knee disability is remanded.

In January 2019, new evidence material to the evaluation of the left knee was received since the last adjudication by the Agency of Original Jurisdiction (AOJ) in November 2018.  In February 2020, the Board sent the Veteran a letter informing him of this fact and asking him if he would like to waive his right to remand the case for AOJ review of the additional evidence. See 38 C.F.R. § 20.1305 (2020).  The Veteran did not reply to the letter; therefore, the Board assumes that the Veteran wishes to have the case remanded to the AOJ for review of the additional evidence.  Thus, remand is warranted for AOJ initial review.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his IBS claim.  The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide a response to the following:

Is it at least as likely as not that the Veteran has or has had IBS at any time during the pendency of the appeal?  The examiner’s attention is directed to VA treatment records noting IBS is an active problem and that he has chronic diarrhea.

If the Veteran does not have IBS, is any current chronic gastrointestinal disorder considered a functional gastrointestinal disorder (as opposed to a structural gastrointestinal disorder)?

If it is not a functional gastrointestinal disorder, is any current chronic gastrointestinal disorder at least as likely as not related to service, including diarrhea in February 2005, vomiting with blood in April 2011, diarrhea in January 2013, a peri rectal fistula in September 2013, diarrhea in October 2013, vomiting and diarrhea in January 2014, diarrhea in September 2014, and diarrhea in October and November 2015?  

Provide a rationale to support all opinions.  

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issue of the evaluation of the left knee disability.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

  

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Rocktashel, 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.