Citation Nr: 21010890
Decision Date: 02/26/21	Archive Date: 02/26/21

DOCKET NO. 16-22 694
DATE: February 26, 2021

ORDER

Entitlement to a compensable disability rating for residuals of a nose injury, under Diagnostic Code 6502, is denied.  

Entitlement to a disability rating of 50 percent disability, and no higher, for chronic maxillary sinusitis, associated with residuals of a nose injury, under Diagnostic Code 6513, from December 2, 2011 to February 10, 2020, is granted.  

Entitlement to a disability rating in excess of 50 percent for chronic maxillary sinusitis, associated with residuals of a nose injury, under Diagnostic Code 6513, beginning February 10, 2020, is denied.  

Entitlement to a disability rating in excess of 20 percent for a lumbar spine degenerative disc disease (DDD), prior to February 10, 2020; and in excess of 40 percent, thereafter, is denied.  

Entitlement to a disability rating in excess of 10 percent for left knee retropatellar pain syndrome (RPS) is denied.  

Entitlement to a disability rating in excess of 10 percent for right knee RPS is denied.  

Entitlement to a separate 10 percent disability rating, and no higher, for impairment of the left knee, under Diagnostic Code 5257, is granted.  

Entitlement to a separate 10 percent disability rating, and no higher, for impairment of the right knee, under Diagnostic Code 5257, is granted.  

Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI), prior to February 10, 2020 is denied.   

REMANDED

Entitlement to a higher level of special monthly compensation (SMC), to include based on the need for aid and attendance, is remanded. 

FINDINGS OF FACT

1. The competent evidence of record does not demonstrate at least 50 percent obstruction of the Veteran’s nasal passage on both sides or complete nasal obstruction on one side. 

2. Resolving reasonable doubt in favor of the Veteran, for the entire period on appeal, the Veteran’s residuals of a nose injury manifested as near constant chronic maxillary sinusitis characterized by pain and tenderness of the affected sinus, headaches, and purulent discharge or crusting after repeated surgeries.  

3. For the period on appeal prior to February 10, 2020, the competent evidence of record shows that the Veteran’s service-connected lumbar spine DDD manifested with forward flexion greater than 30 degrees; forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine or the entire spine has not been shown. 

4. For the period on appeal beginning February 10, 2020, the competent evidence of record shows that the Veteran’s service-connected back disorder manifested with forward flexion greater limited to 30 degrees or less; unfavorable ankylosis of the thoracolumbar spine or entire spine has not been shown.  

5. Throughout the appeal period, the Veteran’s left knee and right knee flexion were limited to, at worst, 55 degrees.  

6. Resolving reasonable doubt in favor of the Veteran, the competent evidence of record shows that the Veteran has slight right knee instability and slight left knee instability.  

7. The Veteran’s residuals of a TBI disability have been manifested by no more than Level 1 impairment of any cognitive function.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for residuals of a nose injury have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6502 (2019). 

2. The criteria for entitlement to a compensable rating for chronic maxillary sinusitis associated with residuals of a nose injury have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6513 (2019). 

3. The criteria for disability ratings in excess of 20 percent for lumbar spine DDD prior to February 10, 2020; and in excess of 40 percent, thereafter, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5242 (2019). 

4. The criteria for a rating in excess of 10 percent for left knee limitation of motion have not been met.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5260 (2019). 

5. The criteria for a rating in excess of 10 percent for right knee limitation of motion have not been met.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5260 (2019). 

6. The criteria for a rating of 10 percent for left knee instability have been met.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5257 (2019). 

7. The criteria for a rating of 10 percent for right knee instability have been met.  38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.59, 4.71a, Diagnostic Code 5257 (2019). 

8.  The criteria for a disability rating in excess of 10 percent for residuals of a TBI have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1980 to October 1984.

These matters come before the Board of Veteran’s Appeals (Board) from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In July 2012, the Veteran submitted a notice of disagreement (NOD) and in March 2016 the RO issued a statement of the case.  In May 2016, the Veteran perfected a substantive appeal. 

In his May 2016 substantive appeal, the Veteran requested a hearing at a local VA office and in June 2019, the Veteran testified in front of the undersigned Veterans Law Judge (VLJ) via a live video conference.  A transcript of the proceeding has been associated with the record.

In a July 2019 decision, the Board remanded these issues for additional development.  This development has been substantially completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Regarding the Veteran’s claim for an increased disability rating for his service-connected TBI, while this issue was in remand status, in a September 2020 rating decision, the RO increased the Veteran’s disability rating under Diagnostic Code 8045 from 10 percent to 100 percent, effective February 10, 2020.  Because that award represents a total grant of benefits sought on appeal for the period beginning on February 10, 2020 (as 100 percent is the maximum schedular rating provided under Diagnostic Code 8045), the claim for an increased rating remains before the Board only for the period prior to February 10, 2020.  See AB v. Brown, 6 Vet. App. 35 (1993).

In the September 2020 rating decision, the RO, in relevant part, also granted service connection for sleep apnea.  The grant of service connection for this disability constitutes a full award of the benefits sought on appeal as to this issue.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  As such this issue is not before the Board at present.

When a veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including special SMC.  See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see also Akles v. Derwinski, 1 Vet. App. 118 (1991).  Here, the Veteran, through his attorney, has asserted that he is seeking a higher rating for his disabilities, to include SMC ratings.  See November 2020 Appellate Brief.  Thus, the issue of entitlement to a higher SMC rating is inferred and the Board has characterized the issues on appeal on the cover page accordingly.

The Veteran’s appeal has been advanced on the docket.  38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). 

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). 

When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must consider the extent to which a veteran may have additional functional impairment beyond the limitation of motion objectively demonstrated, such as when the symptoms are most prevalent due to the extent of the pain and painful motion, weakness, premature or excess fatigability, and incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 

The rating schedule is intended to recognize actually painful, unstable, or malaligned joints due to healed injury as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to cases of painful motion in which there is a finding of arthritis. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).  Case law and VA guidelines anticipate that VA examiners will use information procured from relevant sources, including lay statements, to estimate additional functional loss during flare-ups of musculoskeletal disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 

The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation. See 38 C.F.R. §§ 3.951, 3.957. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

Words such as “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6. 

It should also be noted that use of descriptive terminology such as “severe” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. 

The Board does note, for reference and illustrative purposes, that the definition for “mild” includes not very severe. Webster’s II New College Dictionary at 694 (1995).  In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id. at 1038.  The definitions for “moderate” include of average or medium quantity, quality, or extent.  Id. at 704. Finally, definitions for “severe” include extremely intense.  Id. at 1012.  It is also noted that the term “moderately severe” indicates impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” 

The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  The Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49.  

1. Entitlement to a compensable disability rating for residuals of a nose injury, under Diagnostic Code 6502, is denied. 

2. Entitlement to a disability rating of 50 percent disability, and no higher, for chronic maxillary sinusitis, associated with residuals of a nose injury, under Diagnostic Code 6513, from December 2, 2011 to February 10, 2020, is granted. 

3. Entitlement to a disability rating in excess of 50 percent for chronic maxillary sinusitis, associated with residuals of a nose injury, under Diagnostic Code 6513, beginning February 10, 2020, is denied. 

The Veteran is seeking a higher disability rating for residuals of his service-connected nose injury.  Specifically, he contends that he warrants a higher rating because he has infections that go into his ears, sinus problems, he gets nose bleeds, and he experiences pain with breathing.  See July 2012 NOD. 

Here, the Veteran is assigned a noncompensable rating for residuals of nose injury under Diagnostic Code 6502.  Under Diagnostic Code 6502, a 10 percent rating is warranted for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side.  38 C.F.R. § 4.97.  This is the only schedular rating provided under this diagnostic code. 

Turning to the evidence of record, in January 2012, the Veteran was afforded a VA examination.  The Veteran reported occasional nasal septal pain and congestion and was diagnosed with a deviated nasal septum.  At least 50 percent obstruction of the nasal passage on both sides was not found; nor was complete nasal obstruction on one side.  The examiner noted, however, that a November 2011 CT scan showed that the Veteran had acute or chronic left maxillary sinus disease with a probably hemorrhagic component. 

January 2013, October 2014, December 2015, August 2016, March 2017, July 2018, and September 2018 VA treatment records show the Veteran’s nose as normal and no nasal congestion, but a history of septal surgeries. 

In February 2020, the Veteran was afforded another VA examination.  The Veteran was diagnosed with chronic maxillary sinusitis and deviated septum residual of injury to nose, status-post septoplasty with septal augmentation. The examiner specifically noted that this diagnosis is a correction of the previous diagnosis as this new diagnosis addresses the Veteran’s residuals and history of surgeries.  The Veteran’s symptoms of his sinusitis were found to be near constant and consist of chronic nasal congestion, headaches, pains, tenderness, crusting, postnasal drip, and purulent discharge.  In addition, within the past 12 months, the Veteran was noted to have had 7 or more non-incapacitating episodes.  The Veteran was not found to have had incapacitating episodes of sinusitis or radical sinus surgery.  Regarding the Veteran’s traumatic deviated septum, at least 50 percent obstruction of the nasal passage on both sides was not found; nor was complete nasal obstruction on one side. 

After reviewing the record, the Board concludes that a compensable rating is not warranted for the Veteran’s traumatic deviated septum.  In that regard, the competent evidence of record does not demonstrate at least 50 percent obstruction of the nasal passages or complete obstruction on one side, as required for a 10 percent disability rating under Diagnostic Code 6502.  

The Board acknowledges the Veteran’s contentions that he should be awarded a compensable rating.  While the Veteran is competent to report any nasal symptoms he has had, the Veteran is not competent to report the percentage and etiology of obstruction in his nasal passages, as that requires medical expertise to diagnose and measure.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  Here, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran’s competent assertions provide the most persuasive evidence regarding the limitations posed by the Veteran’s residuals of his nose injury.  As such, the Board finds the severity of the Veteran’s overall disability does not warrant a higher disability rating under Diagnostic Code 6502. 

The Board next considers whether the whether a higher or separate rating is warranted another Diagnostic Code for the Veteran’s residuals of a nose injury.  In doing so, the Board acknowledges that while the Veteran’s claim for a higher disability rating for nose injury residuals was in remand status, in a September 2020 rating decision, the RO awarded a 50 percent disability rating under Diagnostic Code 6513 for chronic maxillary sinusitis associated with residuals of nasal injury, effective February 10, 2020. 

Reviewing the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record establishes that a separate 50 percent disability rating under Diagnostic Code 6513, for the Veteran’s chronic maxillary sinusitis associated with his service-connected deviated septum, for the period on appeal from December 2, 2011, the date of the Veteran’s claim, to February 10, 2020, is warranted. 

All forms of sinusitis are evaluated under the General Rating Formula for Sinusitis, Diagnostic Codes 6510-6514. Under that formula, a noncompensable rating is warranted when sinusitis is detected by X-ray only.  A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non- incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.  The maximum evaluation allowable under the general rating formula is 50 percent.  A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.  38 C.F.R. § 4.97, Diagnostic Code 6513. 

Here, as noted above, in the January 2012 VA examination, CT scans showed chronic maxillary sinusitis with probably hemorrhagic component; the Veteran has provided consistent, competent and credible lay testimony that he experiences ear infections, pain, and discharge; VA treatment records indicate the Veteran has had repeated surgeries; and the February 2020 VA examiner asserted that he was correcting the Veteran’s diagnosis to that of chronic maxillary sinusitis based on the Veteran medical history and lay assertions.   As such, the evidence of record is at least in equipoise as to whether for the period on appeal prior to February 10, 2020, the Veteran experienced near constant sinusitis characterized by headaches, pain, tenderness, and discharge.  Accordingly, affording the Veteran the benefit of the doubt, the Board finds that a 50 percent rating under Diagnostic Code 6513, which contemplates near constant sinusitis, is warranted for the period on appeal from December 2, 2011 to February 10, 2020.  

The Veteran is not entitled to a higher rating under Diagnostic Code 6513 because the Veteran is already receiving the maximum rating of 50 percent for the entire appeal period under this Diagnostic Code.  38 C.F.R. § 4.97. 

The Board additionally finds, following a review of the evidence, that the evidence of record relevant to this appeal does not support the assignment of a Diagnostic Code other than 6502 and 6513 as the Veteran has not demonstrated other compensable respiratory, or other pathology associated with the underlying nasal fracture with deviated septum and sinusitis. 

In light of the above, the Board finds that a compensable disability rating for residuals of nose injuries under Diagnostic Code 6502 is not warranted; and that a disability rating of 50 percent, and no higher, is warranted, effective December 2, 2011, under Diagnostic Code 6513, for chronic maxillary sinusitis, associated with residuals of nose injury.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 

4. Entitlement to a disability rating in excess of 20 percent for a lumbar spine degenerative disc disease (DDD), prior to February 10, 2020; and in excess of 40 percent, thereafter, is denied. 

The Veteran is seeking higher disability ratings for his service-connected lumbar spine DDD.  Specifically, he contends that his disability is more severe than reflected by his currently assigned disability ratings.  See June 2019 Board Hearing. 

Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula); whichever method results in the higher evaluation when all disabilities are combined will be used.  Here, ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a. 

Under the General Rating Formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. 

When a rating is based on incapacitating episodes, under the IVDS Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a. 

Here, the Veteran has been awarded a 20 percent disability rating for lumbar spine DDD under Diagnostic Code 5242 prior to February 10, 2020; and a 40 percent disability rating, thereafter. 

As a preliminary matter, because Diagnostic Code 5242 pertains to degenerative arthritis of the spine, Diagnostic Code 5003 should also be considered when evaluating the Veteran’s disability rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (noting to see also Diagnostic Code 5003).  Under Diagnostic Code 5003, arthritis is rated on the basis of the limitation of motion of the affected joint. When the limitation of motion of the affected joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent is applied to each affected major joint. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003.  For the purpose of rating a disability from arthritis, the lumbar vertebrae are considered a group of minor joints, ratable on parity with major joints.  38 C.F.R. § 4.45(f).  As the Veteran’s limitation of motion is compensable under Diagnostic Code 5242, Diagnostic Code 5003 will not be considered further herein. 

Turning to the evidence of record, in a January 2012 VA examination, the Veteran reported no symptoms or flare-ups.  On examination, the Veteran’s lumbar range of motion (ROM) was normal with no limitation of motion due to objective pain. There was no additional limitation of motion or functional loss following repetitive use testing.  There was no localized tenderness, muscle spasm, or muscle atrophy and the Veteran’s muscle strength and reflex examinations showed normal or hypoactive reflexes.  The Veteran was found to have IVDS with no incapacitating episodes over the past 12 months.  The Veteran did not use assistive devices. 

In his July 2012 NOD, the Veteran stated that he has problems bending over because his back hurts and requires medication and a TENs unit.  The pain is sharp, and he cannot carry heavy items because of it and has had to go to the hospital because of it. 

VA treatment records from May 2014 show the Veteran receiving lumbar support and VA treatment records from September 2015 show the Veteran sought treatment for lumbar pain and had difficulty standing or sitting for the past week.  Private treatment records from September 2015 also show the Veteran reported that his back pain was exacerbated by a slip in his shower.  On examination, he had full ROM, no tenderness or muscle spasm.  VA treatment records from June 2018 and July 2018 also show reports of chronic back pain.  See also April 2020 VA Treatment Record; February 2020 VA Treatment Record; February 2019 VA Treatment Record; December 2018 VA Treatment Record. 

In February 2020, the Veteran was afforded a VA examination.  The examiner noted that the Veteran’s condition has progressed, and symptoms include daily low back pain, sharp in quality.  The Veteran did not report flareups but did report functional loss such that he can’t sit for too long or walk for too long and needs a walker for balance.  In addition, the Veteran had difficulty carrying heavy items.  He can’t get dressed or put shoes on.  On examination, initial ROM texting revealed flexion to 20 degrees and pain was noted to cause functional loss.  The Veteran was unable to complete repetitive use testing due to pain.  Pain, weakness, and fatigue were estimated to limit functional ability and repeated use over time ROM was estimated as forward flexion limited to 10 degrees.  The Veteran had guarding resulting in abnormal gait.  Muscle strength was active movement against some resistance, but no muscle atrophy was noted.  No ankylosis was noted.  The Veteran was found to have IVDS with no incapacitating episodes. 

Reviewing the evidence of record, for the period on appeal prior to February 10, 2020, the Board finds that disability rating in excess of 20 percent for the Veteran’s lumbar spine DDD is not warranted in this case.  As noted above, a higher disability rating of 40 percent under Diagnostic Code 5242 requires forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the thoracolumbar spine.  For compensation purposes, ankylosis is defined as the spine being fixed in flexion or extension, and the ankylosis results in one or more of the following:  difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (5).  Here, the evidence shows that the Veteran exhibits, at worst forward flexion to 90 degrees.  See January 2012 VA Examination.  The Veteran’s VA treatment records, private treatment records, lay assertions, and VA examinations are negative for ankylosis.  Therefore, based on the objective medical evidence of record, the Veteran’s symptomatology does not more nearly approximate or equate to a higher disability rating of 40 percent under Diagnostic Code 5242. 

For the period on appeal beginning February 10, 2020, the Board finds that disability rating in excess of 40 percent for the Veteran’s lumbar spine DDD is not warranted in this case.  As noted above, a higher disability rating of 50 percent under Diagnostic Code 5242 requires unfavorable ankylosis of the thoracolumbar spine.  Here, the evidence shows that the Veteran exhibits, at worst forward flexion to 10 degrees. See February 2020 VA Examination.  The Veteran’s VA treatment records, private treatment records, lay assertions, and VA examinations are negative for ankylosis.  Therefore, based on the objective medical evidence of record, the Veteran’s symptomatology does not more nearly approximate or equate to a higher disability rating of 50 percent. 

In reaching this decision, the Board has considered the Veteran’s competent lay assertions throughout the entire period on appeal, of constant pain, and difficulty bending, walking, and sitting.  See June 2019 Board Hearing; July 2012 NOD.  The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted”).  However, the Board finds that the objective medical findings by skilled professionals in VA examinations, VA treatment records, and private treatment records, which incorporate the Veteran’s competent assertions, the most persuasive evidence regarding the limitations posed by the Veteran’s lumbar spine DDD.  As such, as indicated above, when applying the rating criteria, there is no indication in the record that the Veteran experienced additional limitation of motion such that his forward flexion or combined ROM would be reduced to such an extent as to warrant a higher disability rating under Diagnostic Code 5242. 

The Board has also considered whether for the periods on appeal the Veteran is entitled to a higher rating for his back disability based on the IVDS Rating Formula.  As noted above, the Veteran has a diagnosis of IVDS.  The record shows that, at worst, the Veteran’s IVDS manifested with no incapacitating episodes.  As such, there is no indication in the record that the Veteran has experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks, so as to warrant higher disability ratings of 40 or 60 percent for IVDS for the periods on appeal.  Accordingly, the Veteran would not warrant a higher disability rating under the IVDS Rating Formula. 

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). 

Based on the foregoing, a disability rating in excess of 20 percent for the Veteran’s lumbar spine DDD prior to February 10, 2020; and in excess of 40 percent, thereafter, is not warranted.  Because a preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 

5. Entitlement to a disability rating in excess of 10 percent for left knee RPS is denied. 

6. Entitlement to a disability rating in excess of 10 percent for right knee RPS is denied. 

7. Entitlement to a separate 10 percent disability rating, and no higher, for impairment of the left knee, under Diagnostic Code 5257, is granted. 

8. Entitlement to a separate 10 percent disability rating, and no higher, for impairment of the right knee, under Diagnostic Code 5257, is granted. 

The Veteran is seeking a higher disability rating for his bilateral knee disability.  Specifically, he contends that his knees hurt more due to the way he must walk because of his service-connected back disabilities.  See July 2012 NOD. 

Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). 

A recent CAVC decision highlighted that 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 Lyles v. Shinseki, 29 Vet. App. 107 (2017). 

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5256, a 30 percent rating is assigned for ankylosis of a knee with favorable ankle in full extension, or in slight flexion between zero and ten degrees and a 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees.  A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees and maximum 60 percent rating is assigned for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. 

Diagnostic Code 5257 provides that an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability.  An evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. 

Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. 

Diagnostic Code 5260 provides a noncompensable rating for limitation of flexion to 60 degrees, a 10 percent rating for limitation of flexion to 45 degrees, a 20 percent rating for limitation of flexion to 30 degrees, and a 30 percent rating for limitation of flexion to 15 degrees. 

Diagnostic Code 5261 provides a noncompensable rating for limitation of extension to 5 degrees, a 10 percent rating for limitation of extension to 10 degrees, a 20 percent rating for limitation of extension to 15 degrees, a 30 percent rating for limitation of extension to 20 degrees, a 40 percent rating for limitation of extension to 30 degrees, and a 50 percent rating for limitation of extension to 45 degrees. 

Diagnostic Code 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle warrants a 10 percent rating; characterized by malunion with a moderate knee or ankle disability warrants a 20 percent rating; and characterized by malunion with marked knee warrants a 30 percent rating.  Impairment of the tibia and fibula manifested by nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating.  Diagnostic Code 5263 provides that genu recurvatum warrants a 10 percent rating. 

The Board notes that the criteria concerning the rating of knee disabilities under Diagnostic Code 5257 was amended during the pendency of this appeal, effective from February 7, 2021.  Specifically, the amendment changed the criteria for compensable ratings.  85 Fed. Reg. 76463 (Nov. 30, 2020) (eff. Feb. 7, 2020).  When a regulation changes during the pendency of a claim, the version most favorable to the Veteran applies.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling in part Karnas v. Derwinski, 1 Vet. App. 308 (1991)).  However, the amended version cannot be applied prior to its effective date. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; see also Green v. Brown, 10 Vet. App. 111 (1997). 

Under the amended Diagnostic Code 5257, for recurrent subluxation or instability a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.  A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation.  A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation.  

Diagnostic Code 5257 also provides that for a patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker.  A 20 percent warranty is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker.  A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 

Turning to the evidence of record, in this case, the Veteran has been awarded a 10 percent disability rating for left knee RPS and a 10 percent disability rating for right knee RPS, under Diagnostic Code 5260.  See September 2020 Rating Decision. 

In January 2012, the Veteran was afforded a VA examination.  The Veteran reported constant sharp pain with occasional locking.  He indicated he had moderate flareups with walking lasting up to two hours.  The Veteran did not need an assistive device but used a cane.  Initial ROM testing and testing after three repetitions revealed flexion to 140 or greater and no limitation of extension.  No objective pain, additional loss of ROM, function loss, or tenderness were noted.  The Veteran’s muscle strength and joint stability testing was normal.  There was no patellar subluxation, meniscal conditions, or additional conditions. 

In October 2013 and August 2016 VA treatment records, the Veteran reported knee pain.  April 2013 and September 2018 VA treatment records show that the Veteran was a fall risk.  In addition, January 2013 and July 2018 VA treatment records also that the Veteran was not a fall risk. 

In February 2020, the Veteran was afforded a VA examination.  The examiner noted that the Veteran’s condition had progressed and that the Veteran reported daily bilateral sharp knee pain, swelling, lock and popping, and giving way leading to falls.  The Veteran did not report flareups.  Initial ROM testing of both knees revealed flexion to 65 degrees and normal extension with objective pain.  The Veteran was not able to perform observed repeated use due to pain, and the examiner estimated that repeated use over time ROM would be flexion limited to 55 degrees with normal extension.  Pain, weakness, fatigue, lack of endurance, and incoordination would lead to functional loss.  The Veteran was found to have instability of station, disturbance of locomotion, and interference with sitting and standing.  The Veteran’s muscle strength was less active movement against some resistance due to his service-connected radiculopathy.  There was no muscle atrophy or ankylosis.  Joint stability testing was normal.  No meniscus conditions or additional conditions were noted.  The Veteran was noted to use a walker for his knee arthritis and back strain. 

Following a review of the evidence, for the reasons detailed below, the Board finds that disability ratings in excess of 10 percent for left knee RPS and right knee RPS, under Diagnostic Code 5260 are not warranted.  The Board does finds that a 10 percent disability rating for left knee impairment and a 10 percent disability rating for right knee impairment, under Diagnostic Code 5257, is warranted. 

As a preliminary matter, although the February 2020 VA examination is adequate, the Board acknowledges that the January 2012 VA examination did not comply with the recent decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In Sharp, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veterans themselves when a flare-up is not observable at the time of examination.  29 Vet. App. at 32.  The Board has therefore considered whether remand is warranted to obtain a retrospective opinion on the Veteran’s limitation of motion in his knees prior to February 2020.  See Chotta v. Peake, 22 Vet. App. 80 (2008).  Here, there is no significant medical or lay evidence that an examiner could reasonably evaluate to provide a medical assessment of the severity of the Veteran’s disability at that time with the specificity required by the rating schedule.  Id. at 85, citing 38 U.S.C. § 5103A(a)(2) (“The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.”).  Specifically, to the extent the Veteran asserts that he had further reduced motion in his knees, he has not described a range of motion.  In this regard, during the January 2012 examination he did report flare-ups but described the flare-ups as consisting of increased pain and locking. See also July 203 NOD (describing increased pain); see generally VA Treatment Records.  Therefore, a retrospective opinion would not be probative, and a remand of this appeal will accordingly not be appropriate.  See Robertson v. Shinseki, 26 Vet. App. 169, 181 (2013) (concluding that remand was not warranted to remedy an error where “such a remand would not tangibly benefit” the appellant). 

The Board additionally notes that in his February 2020 VA examination, the examiner specifically describes that the Veteran’s knee disabilities as having worsened.  Based on the foregoing and given the inadequacy of the January 2012 VA examination, the Board will apply to findings of the February 2020 VA examination, those most favorable to the Veteran, to the entire time on appeal. 

The Board considers first whether a higher rating is warranted for both knees under the currently assigned Diagnostic Code 5260.  As noted above, a 10 percent disability rating is warranted where flexion is limited to 45 degrees and a 20 percent disability rating is warranted where there is flexion is limited to 30 degrees.  Here, the evidence reveals that the Veteran has functional flexion better than 45 degrees in each knee.  Specifically, the February 2020 VA examiner evaluated ranges of motion, pain, additional limitation of motion and functional loss upon repetitive testing, and limitation on weight-bearing, and found that the Veteran’s flexion in both knees was limited to, at worst, 55 degrees.  Accordingly, the preponderance of evidence is against a disability rating of 10 percent or higher for each knee under Diagnostic Code 5260 based on limitation of motion. 

The Board recognizes, however, that ‘painful’ motion under Diagnostic Code 5260 warrants at least a minimum compensable rating pursuant to provisions of 38 C.F.R. § 4.59.  Here, the evidence shows that the Veteran has painful motion.  See February 2020 VA Examination; July 2012 NOD.  As such, the currently assigned disability rating of 10 percent for each knee most closely approximates the Veteran’s disability picture. 

The Board next acknowledges that although the January 2012 and February 2020 VA examiners failed to find that the Veteran experiences instability, the evidence of record shows that the Veteran experienced swelling, locking and popping, and giving way that led to falls.  Indeed, the Veteran was determined at times to be a fall risk and to have a history of falling.  See February 2020 VA Examination; September 2018 VA Treatment Record; April 2013 VA Treatment Record; January 2012 VA Examination.  Based on the foregoing, the Board finds that the evidence is in relative equipoise as to whether the Veteran experiences lateral instability or subluxation in both knees.  Resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent separate rating is warranted under Diagnostic Code 5257 for each knee. 

The Board has considered whether higher ratings are warranted under Diagnostic Code 5257 under the regulations in effect both prior to and following February 7, 2021.  Here, the evidence does not indicate that the Veteran’s instability was “moderate” or of medium quantity.  Indeed, several VA treatment records throughout the appeal period show that the Veteran denied falls within the preceding 12 months.  See July 2018 VA Treatment Record; January 2013 VA treatment records.  In addition, although the Veteran uses a cane as an assistive device, the evidence of record does indicate that the Veteran experienced a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability or that a medical provider has prescribed a brace for his knee.  As such, higher disability ratings under Diagnostic Code 5257 for the left and right knees are not warranted. 

The Board has also considered whether higher or separate ratings are warranted under another appropriate Diagnostic Code.  Here, there is no evidence in the claims file showing ankylosis so as to warrant a disability rating under Diagnostic Code 5256.  Regarding Diagnostic Code 5258, the Board acknowledges that the Veteran has competently and credibly reported popping and locking symptoms.  See July 2012 NOD.  There is, however, no indication of meniscus conditions or semilunar dislocated cartilage.  Moreover, the Veteran’s symptoms of popping and locking are associated with his additional complaints of pain and falls.  As such, the Board finds that a disability rating under 5258 is not warranted, but, as explained above, separate disability ratings under Diagnostic Code 5257 are warranted for those symptoms.  There is also no evidence of record indicating symptomatic removal of semilunar cartilage, limitation of extension, impairment of the tibia or fibula, or genu recurvatum warranting a rating under such Diagnostic Codes.  As such, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5258, 5259, 5261, 5262, or 5263 respectively for either his left or right knee RPS. 

In reaching the above determinations, the Board has considered the Veteran’s competent lay assertions, to include his reports of constant pain and difficulty walking or standing for long periods of time.  The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is “that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted”).  However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran’s competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran’s knee disability. 

Based on the foregoing, entitlement to disability ratings in excess of 10 percent for left knee RPS and in excess of 10 percent for right knee RPS are not warranted.  Entitlement to a separate disability rating of 10 percent, and no higher, under Diagnostic Code 5257, for impairment of the left knee and entitlement to a separate disability rating of 10 percent, and no higher, for impairment of the right knee, under Diagnostic Code 5257, is warranted. 

9. Entitlement to a disability rating in excess of 10 percent for TBI, prior to February 10, 2020 is denied.  

The Veteran is seeking a higher disability rating for his service connected TBI.  Specifically, he contends that he warrants a 100 percent rating for the entire period on appeal because he cannot take care of himself without help and because his caregiver must drive him to appointments and make sure that he has eaten and taken his medication.  See July 2013 NOD.

The Veteran’s TBI residuals have been rated under the criteria at 38 C.F.R. § 4.124a, Diagnostic Code 8045 for residuals of TBI.  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 these brain functions may be affected with a cognitive impairment, and some functions may be affected more severely than others.  Symptoms may fluctuate in severity from day to day.  Adjudicators are to rate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”  See 38 C.F.R. § 4.124a, Diagnostic Code 8045.

Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction.  Adjudicators are to rate subjective residual TBI symptoms, 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 rate any residual with a distinct diagnosis that may be rated 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 rate 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 rate 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; 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 rate under the most appropriate Diagnostic Code.  Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating and combine under § 4.25 the ratings for each separately rated condition.  The rating assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the rating for a single condition for purposes of combining with other disability ratings.  Id. 

The need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. must be considered.  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 rating if “total” is the level of evaluation for one or more facets.  If no facet is rated as “total,” adjudicators are to assign the overall percentage rating 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 rating 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 TBI not otherwise classified as determined on examination.  Only one rating is assigned for all the applicable facets.  A rating 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 rated separately.

For the facet memory, attention, concentration, executive functions, a “0” level of impairment is assigned with no complaints of impairment.  A level “1” is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing.  A level “2” is assigned with objective evidence on testing of mild impairment.  A level “3” is assigned with objective evidence on testing of moderate impairment.  A “total” level is assigned with objective evidence on testing of severe impairment.

For the facet judgment, a “0” level of impairment is assigned for normal judgment.  A level “1” is assigned with mildly impaired judgment; for complex or unfamiliar decisions, occasionally unable to identify, understand and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.  A level “2” is assigned with moderately impaired judgment; for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions.  A level “3” is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision.  A “total” level is assigned with severely impaired judgment; for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations and activities.

For the facet social interaction, a “0” level of impairment is assigned when social interaction is routinely appropriate.  A level “1” is assigned when social interaction is occasionally inappropriate.  A level “2” is assigned when social interaction is frequently inappropriate.  A level ‘3” of impairment is assigned when social interaction is inappropriate most or all of the time.

For the facet orientation, a “0” level of impairment is assigned when always oriented to person, time, place and situation.  A level “1” is assigned when occasionally disoriented to one of the four aspects of orientation.  A level “2” is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation.  A level “3” is assigned when often disoriented to two or more of the four aspects of orientation.  A “total” level is assigned when constantly disoriented to two or more of the four aspects of orientation.

For the facet motor activity, (with intact motor and sensory system) a “0” level of impairment is assigned for normal motor activity. A level “1” is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function).  A level “2” is assigned for motor activity mildly decreased or with moderate slowing due to apraxia.  A level “3” is assigned for motor activity moderately decreased due to apraxia.  A “total” level is assigned for motor activity severely decreased due to apraxia.

For the facet visual spatial orientation, a “0” level of impairment is assigned when normal.  A level “1” is assigned when mildly impaired: occasionally gets lost in unfamiliar surroundings; has difficulty reading maps or following directions; is able to use assistive devices such as GPS (global positioning system).  A level “2” is assigned when moderately impaired: usually gets lost in unfamiliar surroundings; has difficulty reading maps, following directions and judging distance; has difficulty using assistive devices such as GPS.  A level “3” is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS.  A “total” level is assigned  when severely impaired: may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment.

For the facet subjective symptoms, a “0” level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety).  A level “1” is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild-to-moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light).  A level “2” is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of other close relationships (examples of findings that might be seen at this level of impairment are marked fatigability, blurred or double vision, headaches requiring rest periods during most days).

For the facet neurobehavioral effects, a “0” level of impairment is assigned for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction.  Examples of neurobehavioral effects are irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects.  A level “1” is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them.  A level “2” is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them.  A level “3” is assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others.

For the facet communication, a “0” level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language.  A level “1” is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas.  A level “2” is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas.  A level “3” is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs.  A “total” level is assigned for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both; unable to communicate basic needs.

For the facet consciousness, a “total” level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma.

There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, more than one evaluation should not be assigned based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is to be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  If, however, the manifestations are clearly separable, a separate evaluation should be assigned for each condition.  Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (2).

“Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (3).

The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (4).

Factual Background

Turning to the evidence of record, in a January 2012 VA TBI examination, the Veteran was diagnosed with mild TBI with no residuals.  The Veteran was also noted to be diagnosed with sleep apnea (claimed as fatigue and weakness) which was not caused by or a residual of the Veteran’s TBI.  The Veteran reported that there were no general health changes since his last VA examination.  Regarding memory, attention, concentration, and executive function, the Veteran was assessed with a complaint of mild memory loss; normal judgment; social interaction that is routinely appropriate; always being oriented to person, time, place, and situation; normal motor activity; normal visual spatial orientation; and no subjective symptoms.  Regarding neurobehavioral effects, the Veteran had no neurobehavioral effects and was able to communicate and comprehend spoken and written language.  His consciousness was also normal.   

VA treatment records reveal that in August 2012, the Veteran reported for mental health treatment.  He asserted that he was doing well with his medications.  The Veteran was considered stable.   He was alert and oriented, appropriately dressed, and his speech was normal.  His thought process was logical, and goal directed.   The Veteran’s memory was grossly intact, and his psychomotor activity, attention and concentration were mostly normal.  His insight and judgment were fair.   See also February 2013 VA Treatment Record (noting also that the Veteran lives with a friend that helps him with cooking and grocery shopping).  In October 2013, the Veteran had no neuro-complaints and no motor deficit.  The Veteran was alert, but his affect was blunted, and his memory was poor.   In April 2014, the Veteran’ had no motor deficit, he was alert and oriented, his affect was appropriate, and his memory was okay.  In October 2014, the Veteran was found to have normal/poor memory but was alert and oriented.  His affect was blunted, and he had no motor deficits.  In a February 2015 mental health note, the Veteran described trying to increase exercise and outside time.  He indicated he used lists to aid his memory.  He was interested in socializing with others but relies heavily on his caregiver.  The Veteran was found to be stable and showing some efficacy in managing thoughts, feelings, and behavior. 

In a September 2015 private treatment record, the Veteran was treated with back pain and was unable to verbalize his aches.  On examination, the Veteran was alert, oriented, and cooperative.

VA treatment records in June 2017 also show that the Veteran believed he was doing fine.  The Veteran was found to be stable and showed some efficacy in managing thoughts, feelings, and behaviors.  In his mental status examination, the Veteran was calm and attentive, his speech was normal, and there was no psychomotor activity.  The Veteran’s affect was appropriate, his thought process was logical and goal-directed, and his insight and judgment were fair.  His memory was intact to recent and remote events.   

In a December 2017 VA treatment record, the Veteran denied psychomotor activity.  He was doing well overall.  On examination he was alert and oriented, cooperative, and his affect was restricted.  His mood was normal, and his memory was grossly intact.  His insight and judgment were fair.  In June 2018, the Veteran was also alert and oriented although he was disheveled.  The Veteran’s psychomotor activity was normal, his speech was just responsive to questions, and his mood was anxious.  His memory was fair, and attention was adequate.  His insight and judgment were fair.  See also March 2018 VA Treatment record (similar findings).  

An August 2018 VA mental health record also shows that the Veteran reported he was doing well but did note he was having more memory problems.  In a separate August 2018 mental health note, the Veteran denied any psychomotor agitation.  The Veteran was alert and orientated.  His attitude was normal, but his speech was spontaneous.  His affect was congruent with mood and his thought process was logical, his memory was grossly intact, his attention and concentration were adequate, and his insight and judgement were fair.   And in September 2018 the Veteran’s judgment, insight, and memory were good, his orientation was normal, and his mood was alert.  In another September 2018 VA treatment record, the Veteran was alert and oriented, he was cooperative, and his psychomotor activity was normal.  His speech was soft, and his affect was restricted.  His mood was anxious, but his thought process was logical, and goal directed.  His short-term memory was limited but his long-term memory was grossly intact.  His attention and concentration and judgment were fair, but his insight was limited.  

In his June 2019 Board hearing, the Veteran’s representative asserted that the Veteran’s TBI is severe. 

In a February 2020 VA TBI examination, the Veteran reported that his memory was getting worse.  The examiner found objective evidence on testing of severe impairment of memory, attention, and concentration, and severely impaired judgment.  The Veteran’s social interaction was routinely appropriate and motor activity was normal, but his orientation was often disoriented to two or more of the four aspects.  The Veteran was found to have moderately severely impaired visual spatial orientation and three or more subjective symptoms that moderately interfere with work.  The Veteran was found to have one or more neurobehavioral effects that interfere with work and an inability to communicate either by spoken language or written language or both.  Residuals included headaches, sleep apnea, and a mental disorder.   The examiner noted specifically that additional conditions had been found on the examination that constituted a worsening of the condition.

In a March 2020 VA mental disorders examination, the examiner diagnosed the Veteran with schizoaffective disorder and major neurocognitive disorder due to TBI.  The examiner asserted that differentiation of symptoms was possible.  He indicated that the Veteran’s symptoms of withdraw from family and friends, irritability and easily angered, crying spells, loss of interest in previously enjoyed activities, loss of motivation to complete activities of daily living, excessive sleeping, paranoid ideation, auditory and visual hallucinations are due to his schizoaffective disorder.  The following symptoms are related to his neurocognitive disorder:  unable to report background history or specific symptoms without assistance from his caregiver; significant memory impairment; unable to report his DOB, his age, the current month/year/day of the week, his SSN, or telephone number; significant confusion, inability to process verbal and visual information, does not recognize people with which he is familiar or recall names of family/friends; spatial disorientation; poor mapping skills, and is unable to follow a map or directions; unable to complete activities of daily living and requires assistance with bathing, dressing, household chores, laundry and cooking from Veteran’s caregiver who does all of these activities of daily living tasks for him.  At the examination the Veteran was alert but withdrawn he was unable to answer most questions and his grooming was poor.  He had severe difficulties with memory impairment and his caregiver provided the majority of the background information.  His speech was logical, goal oriented, and normal.  His thought process was confused at times.  His insight and judgment were fair to poor due to memory loss and psychosis.  

Legal Analysis

As a preliminary matter, the Board notes that the Veteran has been assigned separate ratings for the following residuals associated with his TBI: acquired psychiatric disorder (with distinct symptomology, see February 2020 VA Examination), vertigo, sleep apnea, and cephalgia (headaches).  He is also service-connected for chronic maxillary sinusitis, lumbar spine DJD, bilateral hearing loss, left and right lower extremity sciatic nerve radiculopathy, left and right lower extremity femoral nerve radiculopathy, left and right knee retropatellar pain syndrome, left and right knee instability (herein granted), cervical spine DJD, bilateral flat feet, residuals to nose injury, residuals to left kidney contusion, painful occipital scar, and facial scars.  As such, the symptoms associated with these conditions will not be considered under the criteria of Diagnostic Code 8045.  This is consistent with the rule against pyramiding and the instructions of Diagnostic Code 8045 not to assign multiple ratings for the same symptoms.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Regarding the Veteran’s service-connected acquired psychiatric disorder, as noted above, the Veteran has been assigned a separate disability rating for an acquired psychiatric disorder.  The evidence shows however that the Veteran also has a neurocognitive disorder associated with his TBI and that the symptoms of the Veteran’s neurocognitive disorder are distinguishable from those of his acquired psychiatric disorder (which includes PTSD, schizophrenia, and personality disorder).  As such, the Board will rate the Veteran’s neurocognitive dysfunction for his neurocognitive disorder under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified,” and will not consider the Veteran’s symptoms of his acquired psychiatric disorder so as not to assign multiple ratings for the same symptoms.  Id. 

Turning now to the issue of a disability rating in excess of 10 percent for TBI prior to February 10, 2020, a review of the medical treatment records, lay assertions, medical records and VA examinations does not reveal any symptomatology attributed to the Veteran’s residuals of a TBI that would indicate a level “2” or higher impairment in any of the categories listed in DC 8045.

The Board will discuss each of the facets of cognitive impairment individually under Diagnostic Code 8045.

Regarding memory impairment, in his January 2012 VA examination, the Veteran was found to have a complaint of mild memory loss, or level “1” of severity, which included having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words and misplacing items.  Indeed, his VA treatment records showed that throughout the appeal period, the Veteran’s condition remained generally stable with grossly intact long-memory, average to fair short-term memory, and that his attention and concentration were adequate.  The Veteran also generally reported doing well and making lists to help his memory.   As such the Board finds that a “1” level of severity, which contemplates mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing, is warranted.  

In reaching this determination, the Board acknowledges that in February 2013 and October 2014 VA treatment records, the Veteran’s memory was described as poor, in a February 2013 VA treatment record the Veteran described using lists to aid his memory, and in an August 2018, mental health record the Veteran reported having more memory problems.   However, based on a review of the evidence as a whole, the Board finds that the frequency, severity, and duration of his symptoms more closely approximate those of the “1” level of severity  because the Veteran’s short-term memory ranged mostly from average to fair or good, long-term memory was grossly intact, and his attention and executive functions were adequate.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see September 2018 VA Treatment Record; August 2018 VA Treatment Record; March 2018 VA Treatment Record; December 2017 VA Treatment Record; June 2017 VA Treatment Record; April 2014 VA Treatment Record; August 2012 VA Treatment Record.  Furthermore, the board notes that there examiner finding or objective evidence of testing of mild, moderate, or severe impairment of memory, attention, or executive functions.  See, e.g., January 2012 VA TBI Examination.   Accordingly, a level of severity of “2”, which contemplates objective evidence on testing of mild impairment, is not warranted in this case.

Next, the Veteran’s judgment, in his January 2012 TBI examination, was found to be normal.  Review of the VA treatment records, however, shows that although his judgement throughout the appeal period was generally fair, it was only once described as “good”.  In addition, VA treatment records show that the Veteran’s insight was found to be limited at times.  The Board therefore finds that totality of the evidence is in relative equipoise as to whether the Veteran warrants a higher level of severity of “1” for the period on appeal based on evidence of mildly impaired judgment, including symptoms such as for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.   Resolving reasonable doubt in favor of the Veteran, the Board finds that a level of severity of “1” is warranted for mildly impaired judgment.  A higher level of severity is not warranted as the evidence does not indicate moderate, moderately severe, or severely impaired judgment, which includes symptoms such as for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.

The Veteran’s January 2012 VA examination, treatment records, and lay assertions also show that his social interactions have been found to be routinely appropriate and that he has been consistently found to be oriented to person, time, place, and situation.  They do not show impaired motor activity due to apraxia (inability to perform previously learned motor activities, despite normal motor function) or visual spatial disorientation so to warrant ratings of “1” in these facets of cognitive impairment.

Regarding subjective symptoms, the Veteran has reported, for example, symptoms of dizziness, headaches, and weakness and fatigue.  However, these symptoms have been considered under separate ratings for which the Veteran has been service-connected.  Specifically, the Veteran’s dizziness is a symptom of his service-connected vertigo.  The Veteran is also service connected for headaches and bilateral hearing loss, sleep apnea and an acquired psychiatric disorder, which are disabilities that incorporate the Veteran’s additional subjective symptoms.  See February 2020 VA Examination.  As such, subjective symptoms will not be evaluated under the criteria for a TBI, as that would constitute impermissible pyramiding.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Concerning neurobehavioral effects, the record does not indicate that a level of severity of “1” or higher is warranted.  Specifically, the Veteran’s social interactions have also been noted to be routinely appropriate and the record does not show that the Veteran’s TBI symptoms include irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability.  See also January 2012 VA Examination (finding no neurobehavioral effects).  Rather, the Veteran’s psychiatric symptoms which include withdrawal from family and friends, irritability and easily angered, crying spells, loss of interest in previously enjoyed activities, loss of motivation to complete activities of daily living, excessive sleeping, paranoid ideation, and auditory and visual hallucinations, are associated with his separate and distinguishable acquired psychiatric disorder, which is rated separately.  See February 2020 VA Examination.  These symptoms are not evaluated under the criteria for a TBI, as that would constitute impermissible pyramiding.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Accordingly, a level of severity of “1” for neurobehavioral effects, which contemplates one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them, is not warranted.

Regarding communication, the Veteran’s speech was generally normal, logical and goal oriented.  The record does not reflect that the Veteran’s comprehension or expression, or both, of either spoken language or written language is impaired.  See also January 2012 VA Examination (finding that the Veteran was able to communicate and comprehend spoken and written language).  The Board acknowledges that in September 2015, the Veteran had difficulty verbalizing his back pain, and that in August 2018 his speech was spontaneous.  The Board therefore finds that evidence is in relative equipoise as to whether the Veteran warrants a higher level of severity of “1” for the period on appeal based on evidence occasional impairment of comprehension or expression, or both, of either spoken or written language.   Resolving reasonable doubt in favor of the Veteran, the Board finds that a level of severity of “1” is warranted for occasionally impaired communication.  

Following a review of the entirety of the evidence, the Board finds that higher level of severity of “2” is not warranted as the evidence does not indicate an inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; or that the Veteran cannot generally communicate complex ideas.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also September 2018 VA Treatment Record; June 2018 VA Treatment Record; June 2017 VA Treatment Record; August 2012 VA Treatment Record; January 2012 VA Examination.

As noted above, the evaluation assigned for cognitive impairment and other residuals of TBI not otherwise classified is based upon the highest level of severity for any facet as determined by examination.  Only one evaluation is assigned for all the applicable facets.  In this case, the Veteran was assigned, at most, a level of severity of “1” for facet of cognitive impairment or other residual of his TBI.  As such, the Veteran’s currently assigned 10 percent disability rating most closely approximates the Veteran’s disability picture for the entire period on appeal.  The Board has considered whether staged ratings are appropriate, but finds that a higher disability rating of 40 percent, which requires a level of “2” for at least one of the facets discussed above.  A review of the treatment records and VA examinations does not reveal any symptomatology attributed to the Veteran’s residuals of a TBI that would indicate a level “2” or higher impairment in any of the categories listed in Diagnostic Code 8045. 

In addition, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran’s residuals of TBI beyond those ratings that have already been assigned.  See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Board has also considered Diagnostic Code 8045’s instruction to consider the Veteran’s need for special monthly compensation (SMC).   Here, the Veteran, through his representative, has asserted that he is seeking a higher SMC rating.  See December 2020 Appellate Br.  The Board also notes that the record reveals multiple consistent and competent assertions by the Veteran that he is in constant need of a caregiver to cook, do grocery shopping, and manage his medications.  See July 2013 NOD.  Based on this evidence of record, the Board will address the Veteran’s claim for a higher SMC rating in the REMAND section of this decision. 

Based on the foregoing, the Board finds that a disability rating in excess 10 of percent for TBI for the period on appeal prior to February 10, 2020, is not warranted.  The Board has considered the applicability of the benefit-of-the- doubt doctrine, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable.

REASONS FOR REMAND

1. Entitlement to a higher level of Special Monthly Compensation (SMC), to include based on the need for aid and attendance, is remanded.  is remanded.

The Veteran has contended that a higher SMC is warranted.  See December 2020 Appellate Br.  Specifically, the Veteran has asserted he needs a caregiver to help with medications, and cooking, and daily tasks, to include showering and dressing.  See February 2020 VA Back Examination; February 2020 VA TBI Examination; February 2020 VA Mental Health Examination; January 2012 VA Examination. 

Here, the record shows that the Veteran has been awarded SMC(s) (housebound) based on his acquired psychiatric disability and combined TBI/TBI residual disabilities, effective December 2, 2011.  There are various types of SMC available in addition to SMC at the (s) level, and it is possible for a veteran to be awarded multiple SMC ratings.  Accordingly, remand is necessary to develop evidence for SMC, to include based on the need for aid and attendance.

The matter is REMANDED for the following action:

1. Provide the Veteran with appropriate notice of VA’s duties to notify and assist regarding how to substantiate a claim for entitlement to special monthly compensation for aid and attendance due to service-connected disabilities. 

2. After appropriate notice has been provided, conduct any further development of the special monthly compensation claim deemed necessary, to include obtaining medical examinations or opinions. 

3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Kaufer, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.