Citation Nr: 21012768 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-52 881 DATE: March 5, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for headaches is withdrawn. Entitlement to an initial compensable rating and a rating in excess of 10 percent for painful scars of the scalp and left heel is withdrawn. Entitlement to an effective date prior to May 15, 2016 for erectile dysfunction is denied. Entitlement an effective date prior to May 15, 2016 for special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(k) prior to May 15, 2016 is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to a rating of 40 percent, but no more, for residuals of a traumatic brain injury (TBI) is granted. Entitlement to a rating of 50 percent, but no more, for PTSD is granted. Entitlement to an initial rating of 30 percent, but no more, for sinusitis is granted. Entitlement to an initial compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. On October 23, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of appeal of the following issues is requested: Entitlement to an initial rating in excess of 50 percent for headaches; and entitlement to an initial compensable rating and a rating in excess of 10 percent for painful scars of the scalp and left heel. 2. Prior to May 15, 2016, the evidence does not show a formal or informal claim for erectile dysfunction, for SMC, or for the claim for TBI that underlay the grant of both benefits. 3. The Veteran’s right ear hearing loss is less likely etiologically related to service. 4. The highest severity for any facet of TBI was level 2 severity for: memory, attention, concentration, and executive function, visual-spatial orientation, and subjective symptoms, which the Veteran has maintained throughout the appeal period. 5. During the appeal period, the Veteran has a diagnosis of PTSD characterized by reduced reliability and productivity; deficiencies in most areas is not shown. 6. During the appeal period, the Veteran’s sinusitis has been characterized by regular non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; no sinus surgery has been performed. 7. During the period on appeal, the Veteran’s left ear hearing loss was characterized by no worse than Level III. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial rating in excess of 50 percent for headaches and entitlement to an initial compensable rating and a rating in excess of 10 percent for painful scars of the scalp and left heel by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (legacy). 2. The criteria for an effective date prior to May 15, 2016 for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date prior to May 15, 2016 for special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(k) prior to May 15, 2016 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for service connection for right ear hearing loss have not been met. t. 38 U.S.C. §§ 5103 (a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for a separate rating of 40 percent, but no more, for residuals of a traumatic brain injury (TBI) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045. 6. Entitlement to a rating of 50 percent, but no more, for the Veteran’s PTSD has been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9411. 7. The criteria for an initial rating of 30 percent, but no more, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1 4.7, 4.21, 4.97 DC 6513. 8. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, DC 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to April 1979. This appeal was remanded by the Board in February 2020. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions and examinations were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in November 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The Board notes the Veteran’s October 2020 motion to withdraw his TBI increased rating claim. The Veteran later appealed the Board’s rating of his PTSD and his TBI together. Were the Board to separate these ratings as requested, this would effectively amount to a rating of the Veteran’s TBI. Because doing so results in the highest benefit to the Veteran, the Board denies the Veteran’s motion to withdraw his TBI claim. Withdrawal of Claims 1. Entitlement to an initial rating in excess of 50 percent for headaches 2. Entitlement to an initial compensable rating and a rating in excess of 10 percent for painful scars of the scalp and left heel The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A legacy appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn the above two issues in a signed writing dated October 2020. The writing included his name and file number. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Effective Date The Veteran seeks an effective date prior to May 15, 2016, for his grants of service connection for erectile dysfunction and for SMC. Specifically, he asserts that both benefits should be effective November 17, 2015, the effective date of his TBI residuals underlying his erectile dysfunction. After reviewing the evidence of record, the Board determines that an earlier effective date is not warranted for these benefits. 3. Entitlement to an effective date prior to May 15, 2016 for erectile dysfunction 4. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(k) prior to May 15, 2016 The Veteran contends he is entitled to an effective date prior to May 15, 2016, for the grant of service connection for erectile dysfunction, and by extension, entitlement to SMC on account of loss of use of a creative organ under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a). Specifically, in arguments submitted in July 2018, the Veteran asserts that his claims for erectile dysfunction and SMC for loss of use of a creative organ were implied in his TBI claim and should have the same effective date. However, the Board determines that the Veteran’s earlier effective date claims must be denied. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). As for SMC, the effective date is generally governed by the increased ratings provisions found in 38 C.F.R. § 3.400(o). For effective date purposes, a “claim” is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). In this case, an earlier effective date is not warranted for either the grant of service connection for ED, or the grant of SMC ancillary to ED. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the appropriate effective date for both benefits is May 15, 2016, the date VA received the Veteran’s Intent to File form. The Veteran submitted a service connection claim for TBI on November 17, 2015. He was ultimately granted service connection for TBI residuals in a Rating Decision dated May 2016. On May 15, 2016, the Veteran submitted an Intent to File for service connection for erectile dysfunction. In an August 2017 Rating Decision, the Veteran was granted service connection for erectile dysfunction secondary to TBI. He was also granted special monthly compensation based on loss of use of creative organ resulting from erectile dysfunction. The effective date assigned for each of these two benefits was May 15, 2016. In a December 2018 Rating Decision, the Veteran was also granted service connection for PTSD; the TBI rating was rolled into the PTSD rating, to avoid pyramiding. An effective date of November 17, 2015 was assigned for this benefit. A review of the evidence does not indicate that the Veteran filed a claim for TBI, ED, or SMC prior to November 17, 2015. While the November 17, 2015 claim led to the awards of service connection for ED and SMC, the actual claim for these benefits was not received until May 15, 2016. Therefore, the Board finds that, for effective date purposes, May 15, 2016 is the date of receipt for the Veteran’s claim for ED and SMC. The date of receipt of the underlying claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to this date. In this regard, a review of the record fails to show that the RO received a claim or an informal written communication indicative of the Veteran’s desire to seek service connection for TBI (which, again, is the claim responsible for the grants of service connection for ED and SMC). Indeed, with respect to this specific claim, there are no communications at all prior to this date. While a non-VA record mentions “drug-induced erectile dysfunction,” the Veteran in this note is not making a claim, as he is complaining of symptoms and not asserting entitlement to a benefit. Therefore, the Board concludes that the effective date of the Veteran’s service-connected ED and SMC on account of loss of use of a creative organ under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a) is May 15, 2016 and effective dates prior to this is not warranted. In arguments submitted in July 2018, the Veteran asserts that his claims for erectile dysfunction and SMC for loss of use of a creative organ were implied in his TBI claim and should have the same effective date. Unfortunately, this argument is a misunderstanding of the CAVC’s holding in Akles v. Derwinski. In Akles, the Court held that a claim for SMC is implied in an increased rating claim for an underlying award. Here, however, the Veteran’s TBI award is based on his claim for service connection. While the claim associated with the grant of service connection for the underlying TBI is November 17, 2105, the regulations governing effective dates are clear that the later of the claim for erectile dysfunction and the date entitlement arose is to be the effective date. Here, that date is May 15, 2016.   Service Connection 5. Entitlement to service connection for right ear hearing loss The Veteran seeks service connection for right ear hearing loss. Specifically, asserts that he developed hearing loss as a result of exposure to heavy machinery, small arms fire, mortar and 152mm tank projectiles. In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. In this case, based on the evidence of record, the Board determines that service connection is not warranted for the Veteran’s right ear hearing loss. Based on his service records and his competent and credible statements, the Board concedes that the Veteran was regularly exposed to noise in-service as part of his military specialty of “rack vehicle mechanic,” which carries a high probability of hazardous noise exposure, and that he has a current disability of right ear hearing loss. Accordingly, noise exposure in service is conceded. Thus, the question presented is whether a causal relationship or nexus exists between the Veteran’s hearing loss and tinnitus, and his active service. The Board finds that such a relationship is not demonstrated by the lay and medical evidence, as to either disability. As an initial matter, the Veteran’s March 1976 enlistment audiogram and January 1979 separation audiogram do not reveal a worsening or a pure tone threshold shift in his hearing during service. Further, the post-service evidence does not reflect symptoms related to right ear sensorineural hearing loss for many years after the Veteran left active duty service. Specifically, while the Veteran contends that his right ear hearing loss is related to noise exposure in service, the first clinical indication of hearing loss was not until April 2014, when the Veteran was evaluated at a non-VA provider. Further, neither the Veteran nor his wife report that his hearing onset until almost forty years after his separation from service. Accordingly, continuity of symptomatology with regard to the medical evidence and the Veteran’s statements has not been shown. Finally, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s right ear hearing loss to active duty, despite his contentions to the contrary. Specifically, the Board places significant value on the opinion of a VA examiner who evaluated the Veteran’s symptoms in October 2020. This examiner provided a negative nexus opinion. In so doing, the examiner observed the Veteran and his wife’s lay statements ascribing his hearing loss and tinnitus to service. However, the examiner still opined that the Veteran’s symptoms were less likely service-related. The examiner noted that the Veteran’s hearing was mostly normal at entrance and at separation. The examiner also observed that noise exposure alone is not enough to establish a nexus to the Veteran’s current hearing loss symptoms. Indeed, the examiner pointed out that auditory damage and hearing loss are not conceded based on noise alone. A nexus of auditory damage (for example a contemporaneous decline in hearing), must relate current hearing loss to military noise, and not another etiology. In other words, the examiner accounted for the lay and medical evidence, and concluded that because it presented too far after noise exposure, the Veteran’s current hearing loss is less likely service-related. Given that the Veteran’s hearing loss did not present in service and only became noticeable much more than a year after separation, the examiner ascribed the Veteran’s hearing loss to his post-service work, rather than his in-service noise exposure. It is worth noting that the Veteran’s examiner also noted the Veteran’s exposure post-service to power tools and motor equipment as a contributing factor to the Veteran’s hearing loss since separation. Thus, the Veteran’s hearing loss was shown to be less likely caused or aggravated in or by service. In support of his claim, the Veteran submits a May 2017 VA opinion. While the examiner opines that his hearing loss is at least as likely as not related to his service in the military, the opinion is not supported by adequate reasoning. The examiner reasoned that the Veteran was exposed to the noise of diesel engines and power tools while in service, and that noise levels associated with diesel engines and power tools are known to exceed the safe levels of noise exposure which damages cochlear outer hair cells and can result in noise induced hearing lo Accordingly, it is of limited probative value in proving the Veteran’s claim. The Board has considered the Veteran’s assertions relating his disorders to active service. Specifically, the Veteran and his wife assert that the noise to which he was exposed in service often causes hearing loss. However, the evidence does not show a nexus indicating that noise exposure indeed did result in hearing loss. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of sensorineural phenomena. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. Therefore, the Veteran’s lay statements that his current disorders are related to his time in service are found to lack competency. Again, the Board recognizes that the Veteran experienced acoustic trauma in service. However, despite his acoustic trauma, the medical evidence of record during his time in service and since then does not indicate that his right ear hearing loss onset because of such trauma. To the contrary, the most probative evidence of record shows no evidence linking the Veteran’s hearing loss and tinnitus to any event, injury, or disease incurred in service. Based on the evidence of record, the Veteran’s claims must be denied. 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. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran filed a claim for TBI in November 2015, which was granted with a 40 percent rating in a May 2016 Rating Decision. Pursuant to the May 2017 DBQ, which stated that the occupational effects of each disorder could not be separated, the AOJ issued a December 2018 Rating Decision combining the Veteran’s PTSD and TBI ratings into a 70 percent rating. This action was erroneous, as it violates the Board’s duty to assign the highest evaluation possible. 6. Entitlement to an increased rating for residuals of a Traumatic brain injury (TBI) There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral (psychiatric), and physical. Each of these areas of dysfunction may each require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. However, the instructions associated with DC 8045 establish that these evaluations be performed in a certain order. Namely, where there is a diagnosis of an acquired psychiatric disorder associated with a TBI, a veteran’s symptoms should be captured to the maximum extent possible under 38 C.F.R. § 4.130 (addressing general psychiatric disorders). Similarly, all physical impairments associated with a TBI should first be addressed under the diagnostic code specific to the impairment. All remaining unaddressed symptoms are then addressed under the table labeled “Facets of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” as set forth in 38 C.F.R. § 4.124a, DC 8045. The Veteran’s TBI residuals are rated under 38 C.F.R. § 4.124a, DC 8045. Under DC 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: emotional/behavioral, cognitive (which is common in varying degrees after a traumatic brain injury), and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. The table for evaluating cognitive impairment addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. The table also provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, as well as a fifth level, the highest level of impairment, labeled “total.” These facets include memory, attention, concentration and executive functions, judgment, social interaction, orientation, motor activity (with intact motor and sensory system), visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other “subjective symptoms.” If no facet is evaluated as “total,” the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, if one facet is classified as a 3, then a 70 percent evaluation is assigned. When a veteran displays subjective symptoms, such symptoms should be applied to this table, unless the symptoms may be evaluated under another DC. For example, if there are any emotional or behavioral symptoms that have been clinically diagnosed, such symptoms should be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Similarly, if the residuals of the TBI include other diagnosable symptoms such as (but not limited to) motor and sensory dysfunction, visual impairment, hearing loss and tinnitus, loss of sense of smell and taste, or any other disorders, they should be evaluated under the appropriate DC, and then combined under 38 C.F.R. § 4.25. Here, the Veteran is service-connected for psychiatric manifestations (PTSD), physical manifestations (headaches, tinnitus, hearing loss, and erectile dysfunction), and other cognitive or subjective manifestations of a TBI. In a Rating decision dated May 2016, he was assigned a rating of 40 percent for both PTSD and TBI, effective November 17, 2015. The Veteran asserts entitlement to separate ratings for PTSD and TBI. As elucidated below, the Veteran is entitled to a 50 percent rating for PTSD. A rating of 40 percent, but no more, for residuals of TBI is warranted.  A. Psychiatric Impairment The Veteran’s residuals of TBI manifested by psychiatric characteristics are presently covered in his PTSD rating under Diagnostic Code (DC) 9411. Psychiatric disorders are evaluated under 38 C.F.R. § 4.130, which applies the General Rating Formula for Mental Disorders. In this case, the Board assigns a 50 percent rating for the Veteran’s psychiatric symptoms attributable to PTSD. Under these rating criteria, a 30 percent rating is assigned for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including in work or work like settings); inability to establish and maintain effective relationships. Id. In order to warrant a 100 percent rating, the evidence must show 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; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at examination. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In this case, the Veteran’s psychiatric symptoms attributable to PTSD merit a rating of 50 percent. The next higher 70 percent rating is not warranted. Specifically, the Veteran did not demonstrate occupational and social impairment with deficiencies in most areas. Despite some inconsistencies in the Veteran’s November 2016 VA examination, the Veteran’s May 2020 examiner, a PsyD, was able to comprehensively determine which symptoms were of a mental disorder, and which stemmed from his TBI. Specifically, the examiner attributed the Veteran’s easy frustration, mood swings, sadness, anxiety, panic attacks, irritability, outbursts, lack of motivation, and isolation to his TBI. On the other hand, the Veteran’s unexplained physical problems, such as back pain or headaches; flashbacks; panic, sleep disturbances including upsetting dreams/nightmares, avoidance, negative thinking, hopelessness, difficulty maintaining close relationships, difficulty experiencing positive emotions, numbness, sadness, emptiness, and hopelessness was attributed to PTSD and major depressive disorder. Lack of interest and motivation were attributed to both disorders. For rating purposes, the Board will assign this symptom to PTSD. The below analysis factors the PTSD-related symptoms accordingly. During the period on appeal, the Veteran reported quick anger, mood swings, lack of motivation, and self-isolation. An October 2016 note mentions frequently crying and negative thinking. His wife sometimes forces him to eat due to his lack of interest. Panic attacks several times a week force the Veteran to pull over when driving. Thus, he cannot take long road trips, and sometimes gets physically violent in his sleep. The Veteran averaged 4 hours a night at his December 2016 VA examination and three hours of uninterrupted sleep in March 2017. The Veteran reported self-medicating with alcohol, drinking alcohol 4-5 times a week, generally consuming a dozen drinks per setting. The Veteran’s May 2017 examiner noted distressing dreams, flashbacks, avoidant behaviors, hypervigilance, panic attacks, anger, tearfulness, irritability, and an exaggerated startle response. A February 2018 record noted hypervigilance resulting in the Veteran’s family rarely leaving the house, even for outdoor events like parades or the beach. The Veteran also endorsed binge eating. Isolation, sleep disturbance and alcohol use disorder continued. While the Veteran experienced passive suicidal thoughts, these thoughts do not appear intrusive or otherwise cause deficiencies in most areas. Despite working alone, the Veteran noted performing well at his job. In light of these symptoms, the Board grants a 50 percent evaluation, effective November 17, 2015. Specifically, the Board finds that the Veteran’s PTSD has produced symptoms reflecting reduced reliability and productivity, including depression, isolation, quick anger, panic attacks, difficulty maintaining relationships, and heavy drinking. Taken together, the evidence shows reduced reliability and productivity, particularly in family and social relations, mood, and sleep impairment. Affording him the benefit of the doubt, a 50 percent rating for the Veteran’s PTSD symptoms is granted, effective the date of service connection. During the period on appeal, the Veteran has not shown deficiencies in most areas, required for the next higher rating of 70 percent. Although he has had passive suicidal ideations, they have not caused deficiencies in most areas of social or occupational functioning. The Veteran’s amotivation and fatigue, to the extent they are attributable to PTSD, have caused reduced reliability and productivity at the most. Despite the Veteran having missed work meetings, and despite having to work alone to avoid social conflicts, the Veteran has not demonstrated that his PTSD symptoms cause the level of impairment required for a 70 percent rating. To the extent that the Veteran has any of the criteria for a 70 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 50 percent rating. B. Physical Impairment The Veteran’s physical residuals of a TBI, namely headaches, tinnitus, and ED, have been addressed under other DCs in AOJ rating decisions and in this Board decision. Indeed, the Veteran has the highest schedular rating available for headaches and tinnitus, and has not asserted penile deformity during the appeal period. Therefore, questions regarding the physical manifestation of a TBI, whether subjective or objective, are not currently for consideration by the Board. C. Cognitive Impairment To warrant a rating in excess of 40 percent for cognitive impairment, the evidence must show a symptom equivalent to a “3” as the highest level of any one cognitive facet, or a “total” evaluation to be assigned for one or more facets relating to cognitive impairment. 38 C.F.R. § 4.124a. The former would warrant a 70 percent rating, while the latter would warrant a 100 percent rating. Cognitive impairment is defined as “decreased memory, concentration, attention, and executive functions of the brain.” The term “executive functions” includes factors such as 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. The extent of cognitive impairment is evaluated under the table contained in 38 C.F.R. § 4.124a, which addresses “Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified.” Based upon the evidence of record, a rating of 40 percent, but no more, based on cognitive impairment is warranted. To warrant a rating in excess of 40 percent, the evidence must show a symptom equivalent to a “3” as the highest level of any one cognitive facet, or a “total” evaluation to be assigned for one or more facets relating to cognitive impairment. 38 C.F.R. § 4.124a. Here, the evidence reflects that the highest level of severity for any cognitive facet during the period on appeal is “2” under the criteria set forth in 38 C.F.R. § 4.124a. Specifically, the evidence of record, including November 2016 and October 2017 treatment records, reflects short-term memory loss attributable to TBI. Indeed, testing of memory, attention, concentration, and executive functions at his May 2020 DBQ showed mild functional impairment of this facet, corresponding to level “2.” For instance, during the period on appeal, the Veteran reported an inability to recall words and names, forgetting to complete tasks, and misplacing items. He also reported conversations with customers at work frequently going off topic. As the evidence does not show a moderate impairment on the Veteran’s ability to maintain friendships and gainful employment, the functional impairment caused by these symptoms can best be described as mild, corresponding to level 2. Other facets also tested at the level of “2.” The Veteran reported, in his Form 9, difficulty using GPS. Moreover, the Veteran’s May 2020 examiner determined that the Veteran’s visual-spatial orientation was “moderately impaired,” which corresponds to level “2.” The examiner considered the Veteran’s often becoming lost in unfamiliar surroundings, and difficulty reading maps, following directions (even with GPS), and judging distance. The Veteran does not report getting lost in familiar surroundings, nor a complete inability to use GPS. Therefore, the Veteran’s highest cognitive facets attributable strictly to TBI are, at most, level 2. This corresponds to a 40 percent rating. The Veteran had one or more neurobehavioral effects attributed to TBI that occasionally interfered with workplace interaction and social interaction. Specifically, he can become very impatient at work, and has cursed at colleagues and made obscene gestures. These effects occur due to frustration and mood swings, which as mentioned, were attributed to TBI. This results in colleagues rarely coming to him for advice, to avoid interacting with him. Further, in his Form 9 dated October 2017, the Veteran notes that his short-term memory lapses affect his relationship with coworkers and clients. In other words, they frequently interfere with workplace and social interaction. Nonetheless, the evidence does not indicate that workplace or social interaction was totally precluded, and the evidence does not mention requiring supervision of the Veteran for the safety of himself or others. Accordingly, 2 is the highest level that can be afforded for neurobehavioral effects. The Veteran’s May 2020 DBQ indicates that his judgment, motor activity, communication, and consciousness were normal. Indeed, during the period on appeal, the Veteran was always fully alert. Based on the cognitive impairment, visual-spatial orientation, and neurobehavioral effects of the Veteran’s TBI, the Board determines that a 40 percent rating, and no more, is warranted. 7. Entitlement to an increased rating for sinusitis The Veteran’s nasal disorder, characterized as sinusitis, has been assigned a noncompensable disability rating under 38 C.F.R. § 4.97, DC 6513. Under this DC, a 10 percent rating is warranted when the evidence shows 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 rating is warranted if the evidence shows 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. Finally, the schedular maximum 50 percent rating is warranted 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. 38 C.F.R. § 4.97, DC 6513. After a review of the evidence of record, the Board determines that a rating of 30 percent, but no more, is warranted for the period on appeal. The evidence shows more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Specifically, during a C&P examination in May 2017, the Veteran reported multiple sinus infections yearly, having been to the emergency room at least 3 times in 2017. In December 2017, the Veteran presented with boggy nasal mucosa and large inferior turbinates, with no sinus pain to percussion, no drainage, vertex and occipital headache. In his February 2018 Notice of Disagreement, the Veteran clarified his symptoms, stating that he suffered chronic congestion, drainage, crusting and headaches. He suffered daily headaches, post-nasal drainage, aching and ear blocking, and had taken several courses of antibiotics in the past year. The maxillary and frontal sinusitis. Characterized by frequent episodes of sinusitis, headaches, and pain of affected sinuses. He endorsed sinusitis at least yearly treated with antibiotics, related to his sinusitis. The symptoms occurred every day The Veteran’s October 2020 C&P examiner diagnosed him with maxillary and frontal sinusitis. She noted that his disability was characterized by frequent episodes of sinusitis, headaches, and pain of affected sinuses. While she noted that the Veteran had sinusitis at least yearly, she also noted that the “symptoms occur every day.” The Board notes that crusting or purulent discharge is not noted in the examination report. However, the Veteran’s competent and credible lay testimony, including his Notice of Disagreement, indicate crusting on a regular basis. The Veteran has experienced headaches and pain on at least six occasions yearly. Considering the Veteran’s testimony and the May 2017 DBQ reporting at least 6 episodes of sinus infections per year, the Board finds it at least as likely as not that crusting happened at least six times during a given year in the appeal period. Accordingly, a 30 percent rating is warranted for sinusitis. 8. Entitlement to an increased rating for left ear hearing loss There was also disagreement with the noncompensable rating the Veteran received for his left ear hearing loss, which was assigned under 38 C.F.R. § 4.85, DC 6100. Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Based on the evidence of record, a compensable rating is not warranted. Specifically, at a VA examination in May 2017, the Veteran stated difficulty hearing speech in background noise. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows:  HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 30 30 28 LEFT 30 30 30 35 31 The Veteran’s speech audiometry at this examination revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. An exceptional pattern of hearing impairment was not shown. According to Table VI, the Veteran demonstrated Level I hearing loss in the left and right ears. This warrants a noncompensable rating for bilateral hearing loss. Next at Veteran’s October 2020 C&P examination the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 55 50 45 LEFT 50 50 50 50 50 At this examination, speech audiometry revealed speech recognition ability of 48 percent in the right ear and 60 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. However, the examiner indicated that the use of the speech discrimination score was inappropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. Therefore, Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. See 38 C.F.R. § 4.85(c). Applying Table VIa the Veteran demonstrates level III hearing loss in the left ear and level II hearing loss in the non-service-connected right ear. Applying these results to Table VII produces a noncompensable rating for the Veteran’s service connected left ear. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his disabilities are worse than reflected in his current rating structure.  Specifically, the Veteran, through his representative, asserts that he is has trouble hearing conversation, has his home and work life affected, and goes through daytime fatigue. 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).  Competency of evidence differs from weight and credibility.  While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991).  In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his disabilities.  The competent evidence concerning the nature and extent of the Veteran’s claimed disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations.  The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.  The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008).  In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008).  Of note in this case, the Veteran argues that under Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017), the Board is required to discuss whether his ear pain, dizziness, recurrent loss of balance, or psychiatric symptoms warrant a separate rating. In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the schedular rating criteria.  Specifically, the Board has reviewed all relevant symptoms related to the issues on appeal. Nonetheless, the Board concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic code.  Indeed, the diagnostic code accounts for the fact that hearing is tested in a lab, rather than in real life conditions. Further, the Diagnostic Code includes sections that deal with each set of symptoms reported. The rating criteria are adequate to compensate for the Veteran’s disabilities, to include lightheadedness and nausea. As such the factors cited do not merit referral for ratings in excess of what is granted for the period on appeal.  Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. The Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Accordingly, consideration for a TDIU rating is not warranted Based on the evidence of record, the Board determines that an initial compensable rating is not warranted for the Veteran’s left ear hearing loss. A 40 percent rating, but no more, is warranted for his TBI, and a 30 percent rating, but no more, is warranted for the Veteran’s sinusitis. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia