Citation Nr: 21012983 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-12 237A DATE: March 8, 2021 ORDER Entitlement to an increased disability rating for traumatic brain injury (TBI) in excess of 10 percent disabling is denied. Entitlement to a compensable disability rating prior to September 29, 2020, and in excess of 10 percent thereafter, for status post fracture of the pubis and sacroiliac with limitation of abduction is denied. Entitlement to a compensable disability rating for status post fracture of the left sacroiliac with limitation of extension of the thigh in excess of 5 degrees is denied. Entitlement to a compensable disability rating for status post fracture of the left pubis and sacroiliac with limitation of flexion of the thigh in excess of 45 degrees is denied. Entitlement to a compensable rating prior to November 8, 2018 for status post bladder rupture is denied. Entitlement to a 40 percent as of November 8, 2018 for status post bladder rupture is granted. Entitlement to a rating in excess of 40 percent from November 8, 2018 for status post bladder rupture is denied. Entitlement to a compensable rating for tension headaches is denied. REMANDED Entitlement to a compensable disability rating prior to December 6, 2019, and in excess of 10 percent thereafter, for status post fracture of the left ankle is remanded. FINDINGS OF FACT 1. The Veteran's residuals of a TBI are shown to have a highest level of severity of Level "1" impairment for the applicable 10 facets. 2. The preponderance of the evidence is against finding that the Veteran ever suffered from limitation of abduction most lost beyond 10 degrees for either period on appeal. 3. The preponderance of the evidence is against finding that the Veteran suffered painful motion causing functional loss or impairment with abduction, flexion, or extension of his left hip for the period prior to September 29, 2020. 4. The preponderance of the evidence is against finding that the Veteran suffered painful motion causing functional loss or impairment with flexion or extension of his left hip for the period from September 29, 2020 to present. 5. The preponderance of the evidence is against finding that for the period prior to November 8, 2018, the Veteran's status post bladder rupture has required the use of absorbent material or an appliance. 6. For the period from November 8, 2018 to present, the evidence is at least in equipoise as to whether the Veteran’s status post bladder rupture disability required the use of absorbent material or an appliance. 7. The preponderance of the evidence is against finding that for any period on appeal, the Veteran's status post bladder rupture ever required the use of absorbent material which must be changed more than 4 times per day. 8. During the appeal period, the Veteran’s tension headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a TBI have not been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8045. 2. The criteria for a compensable rating for status post fracture of the pubis and sacroiliac with limitation of abduction have not been met for the period prior to September 29, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 3. The criteria for a rating in excess of 10 percent for status post fracture of the pubis and sacroiliac with limitation of abduction have not been met for the period from September 29, 2020 to present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 4. The criteria for a compensable rating for status post fracture of the left sacroiliac with limitation of extension of the thigh have not been met for either period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5251. 5. The criteria for a compensable rating for status post fracture of the left pubis and sacroiliac with limitation of flexion of the thigh have not been met for either period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252. 6. The criteria for an initial compensable rating for status post bladder rupture have not been met for the period prior to November 8, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, DC 7517. 7. The criteria for an increased 40 percent disability rating for status post bladder rupture from November 8, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, DC 7517. 8. The criteria for a rating in excess of 40 percent rating for status post bladder from November 8, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, DC 7517. 7. The criteria for a compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1981 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in November 2018 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The claims on appeal were remanded by the Board in June 2019 in order to obtain new VA examinations to address the current severity levels of the Veteran’s service-connected disabilities. Upon review, the Board finds that substantial compliance with its remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998); October 2020 VA examinations. The Board notes the procedural history for the claims on appeal as the Veteran was granted, upon remand, separate ratings for the hip, as well as increased ratings for his service-connected bladder and left ankle disabilities. See October 2020 RD. Subsequently, and in response thereto, the Veteran filed a November 2020 VA Form 10182 Notice of Agreement. As these same claims remain on appeal in the legacy system, the Board finds that the October 2020 RD does not constitute an initial decision, and therefore is not appealable under the AMA. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the Board’s review of the Veteran’s claims proceeds under the legacy system. 1. Entitlement to an increased disability rating for traumatic brain injury (TBI) in excess of 10 percent disabling The Veteran claims that he is entitled to an increased disability rating in excess of 10 percent for his service-connected TBI disability. The Veteran's service-connected TBI disability is evaluated under Diagnostic Code (DC) 8045 of the Rating Schedule. 38 C.F.R. § 4.124a. There are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, 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. Cognitive impairment is evaluated under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, are to be evaluated separately, 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. Emotional/behavioral dysfunction is evaluated under § 4.130 (Mental Disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms should be evaluated under the criteria in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Physical (including neurological) dysfunction should be evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. 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." Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. Pyramiding, known as the evaluation of the same disability or same manifestation under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. Here, the Board notes that as service connection is in effect for tension headaches, its associated symptomatology will not be considered in evaluating the Veteran's TBI increased rating claim to avoid violating the rules against pyramiding. See 38 C.F.R. § 4.14; 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran’s TBI disability was examined in March 2012. Per the examination report, the Veteran stated that since the motor vehicle accident in service, he suffers from left temporal headaches, and also notices difficulty in expressing himself and he is sometimes told he is sloppy and slow. The VA examiner indicated that the Veteran suffers from a complaint of mild memory loss, with residuals of headaches, and that his disability causes him functional impairment to the extent of having memory lapses. Lastly, the VA examiner opined that there are no other emotional/behavioral signs or symptoms identified. To point, the Veteran was noted as having normal judgment, routinely appropriate social interaction, always oriented to person, time, place, and situation, normal motor activity, normal visual spatial orientation, with no subjective symptoms, no neurobehavioral effects, and able to communicate by spoken and written language, with normal consciousness. Id. The Veteran’s TBI disability was again examined in December 2019. Per the examination report, the Veteran continues to have problems with speech, slow cognition, memory, and headaches every day. The medical examiner noted a complaint of mild memory loss, normal judgment, routinely appropriate social interaction, always oriented to person, time, place, and situation, normal motor activity, normal visual spatial orientation, with subjective symptoms that do not interfere with work, one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, able to communicate by spoken and written language, and normal consciousness. The Veteran’s subjective symptoms included his headaches. The VA examiner did not find that the Veteran’s TBI disability has a functional impact on his ability to work. With regards to the appropriate rating under the TBI facets, based upon the medical examination reports of record, a level of 1 is assigned for memory, attention, and executive functions, a level of 0 is assigned for judgement, a level of 0 is assigned for social interaction, a level of 0 is assigned for orientation, a level of 0 is assigned for motor activity, a level of 0 is assigned for visual spatial orientation, a level of 0 is assigned for subjective symptoms, a level of 0 is assigned for neurobehavioral effects, and a level of 0 is assigned for communication. Per the lay testimony of record, the Veteran stated during his Board hearing that his memory has gotten worse to the extent of forgetting things he is asked to remember, such as grocery lists; his wife confirmed these reports. See November 2018 Board hearing transcript. The Veteran stated that sometimes he makes bad judgements relative to his work, and gets emotional at times to the extent of crying and becoming irritable and frustrated. The Veteran also stated he has trouble processing speech in terms of understanding commands at work, and does not process multiple questions at a time. See also April 2015 VA Form 9 (stating that the Veteran’s memory impairment hinders his everyday life). Here, the Board notes that the record does not contain objective evidence on testing of mild, moderate, or severe impairment of memory, attention, concentration, or executive functions resulting in mild, moderate, or severe functional impairment, and therefore the Veteran’s lay reports are best described as a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations), attention, concentration, or executive functions, but without objective evidence on testing. The competent and comprehensive examinations show that the Veteran does not have TBI symptoms or residuals beyond subjective mild memory loss and headaches (of which he is already being compensated for). The Veteran has a level 1 for complaints of mild memory loss that cannot be objectively verified by testing. All other TBI considerations not already compensated are normal and rated as 0. His highest facet score is 1 which is equal to a 10 percent evaluation. Additionally, while his lay statements must be considered, he is not a medical professional capable of diagnosing himself with a more severe TBI, and the Board finds that his lay testimony is otherwise reflected in the aforesaid medical examinations of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, to the extent that a higher level of compensation is sought, the preponderance of the evidence is against the claim, as the record does not reveal findings, medical or lay, that would warrant assigning a facet level of 2 or higher for the Veteran's service-connected TBI disability. Accordingly, an increased disability rating in excess of 10 percent is denied for the Veteran's service-connected TBI disability. 2. Entitlement to a compensable disability rating prior to September 29, 2019, and in excess of 10 percent thereafter, for status post fracture of the pubis and sacroiliac with limitation of abduction 3. Entitlement to a compensable disability rating for status post fracture of the left sacroiliac with limitation of extension of the thigh in excess of 5 degrees 4. Entitlement to a compensable disability rating for status post fracture of the left pubis and sacroiliac with limitation of flexion of the thigh in excess of 45 degrees The Veteran contends that he is entitled to higher ratings for his service-connected hip for limitation of abduction, flexion and extension of the thigh. See August 2012 Notice of Disagreement; November 2018 Board hearing testimony. On February 7, 2021, amendments to the schedule for rating musculoskeletal disabilities went into effect. See 85 Fed. Reg. 76453. Here, the Board notes that relative to said amendments, DCs 5251, 5252, and 5253 were not impacted. Upon remand, the Veteran was granted separate noncompensable ratings for limitation of flexion and extension of the thigh. See October 2020 RD. The Veteran’s status post fracture of the pubis and sacroiliac is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251 for limitation of extension of the thigh, DC 5252 for limitation of flexion of the thigh, and DC 5253 for limitation of abduction of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. For the period prior to September 29, 2020… For this period on appeal, the Veteran is in receipt of a noncompensable rating for limitation of abduction for his left hip. See August 2012 RD. Per the March 2012 VA examination report, the Veteran reported that he has not had any issues with his left hip since the motor vehicle accident in service. Initial range of motion testing revealed left hip flexion to 125 degrees or greater with no objective evidence of pain, extension to greater than 5 degrees with no objective evidence of painful motion. The VA examiner did not find that abduction is lost beyond 10 degrees, that the Veteran cannot cross his legs, or that rotation is limited such that the Veteran cannot toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions and post-test range of motion results did not reveal any additional limitation, functional loss, or functional impairment. The Veteran had normal strength in his left hip with flexion, abduction, and extension. The VA examiner did not find that the Veteran suffers from localized tenderness or pain to palpation for joints/soft tissue of the left hip, ankylosis, malunion or nonunion of femur, flail hip joint or leg length discrepancy. As such, the Board does not find the Veteran entitled to separate ratings pursuant to DCs 5251, 5254, or 5255. Relative to the March 2012 VA examiner’s findings, the Veteran’s left hip does not manifest with: extension limited to 5 degrees as contemplated by the 10 percent rating criteria under DC 5251; flexion limited to 45 degrees as contemplated by the 10 rating criteria under DC 5252; or limitation of abduction, cannot cross legs, limitation of rotation cannot toe-out more than 15 degrees as contemplated by the 10 percent rating criteria under DC 5253. To point, per the examination report the Veteran does not suffer any functional loss/impairment of the left hip. During the Veteran’s November 2018 Board hearing, he relayed that he does not currently undergo physical therapy for his left hip and instead his wife gives him a connective tissue massage to help loosen the muscles for more movement. The Veteran’s wife stated that while the hip seems limited in some ways, she felt that the primary issue is tissue tightness. Based on these statements, the Board does not find ample evidence to rate the Veteran’s left hip disability in terms of limitation of motion, as the testimony does not indicate the same, to include as to whether or not the Veteran was able to cross his legs at this time in the appeal period. See also September 2020 VA examination report. Additionally, as alluded to by the Veteran during his Board hearing, his VA treatment records do not indicate any other range of motion testing or medical findings which would warrant an increased rating based upon limitation of motion of his left hip as he did not seek medical treatment for his left hip disability. As such, the Board also does not find minimum compensable ratings for limitation of abduction, extension, or flexion are warranted pursuant to 38 C.F.R. § 4.59. See also March 2012 VA examination report. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for compensable ratings for limitation of abduction, extension and flexion for the period prior to September 29, 2020. To point, during the Veteran’s March 2012 VA examination there were no findings of limitation of motion or objective evidence of pain during the range of motion testing, and there is no other evidence of record to warrant such a finding, to include the Veteran’s lay testimony of record. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. For the period from September 29, 2020… For this period, the Board notes that the Veteran is in receipt of a 10 percent rating for limitation of abduction based upon medical findings that he cannot cross his legs. See October 2020 RD. The Veteran is also in receipt of noncompensable ratings for limitation of flexion and extension of the left hip. Id. Per the September 2020 VA examination report, the Veteran reported that twisting, turning pallets and lifting at work creates flare up and can’t stand for a length of time as it is quite painful. Initial range of motion measurements for the left hip revealed abnormal ranges with flexion from 0 to 110 degrees, extension from 0 to 25 degrees, abduction from 0 to 40 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 50 degrees, and internal rotation 0 to 30 degrees. The VA examiner indicated that adduction is limited such that the Veteran cannot cross legs. The VA examiner indicated that the Veteran’s limited range of motion of the left hip contributed to functional loss as standing for any length of time is painful, while twisting and turning while lifting at work is hard. Importantly, the VA examiner noted that the Veteran exhibited pain during the range of motion testing with abduction, adduction, external rotation, and internal rotation, but not with flexion and extension. Id. With repetitive-use testing, the Veteran was able to perform range of motion after three repetitions and there was additional loss of function/range of motion with flexion from 0 to 110 degrees, extension from 0 to 20 degrees, abduction from 0 to 35 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 25 degrees, and internal rotation from 0 to 20 degrees. The VA examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination caused the Veteran’s functional loss with observed repetitive use. With repeated use over time, the VA examiner indicated that the Veteran was not being examined immediately after repetitive use over time, but that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. In terms of range of motion, flexion was noted from 0 to 100 degrees, extension from 0 to 20 degrees, abduction from 0 to 35 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 50 degrees, and internal rotation from 0 to 30 degrees. The VA examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination caused the Veteran’s functional loss with repeated use over time. For flare ups, the VA examiner indicated that the examination was not conducted during one, and that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flareup. The VA examiner indicated that the pain, weakness, fatigability or incoordination did significantly limit the Veteran’s functional ability with flareups, with flexion from 0 to 110 degrees, extension from 0 to 25 degrees, abduction from 0 to 35 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 40 degrees, and internal rotation from 0 to 30 degrees. The VA examiner did not find any other contributing factors of disability. The VA examiner did find a reduction in muscle strength of the left hip with flexion 2/5, extension 3/5, and abduction 3/5. The VA examiner did not find that the Veteran suffers from muscle atrophy, ankylosis, or malunion or nonunion of femur/flail hip joint as contemplated by DCs 5250, 5254, and 5255, and therefore the Board does not find separate ratings are warranted for the Veteran’s left hip under those diagnostic codes. Relative to the September 2020 VA examiner’s findings, the Veteran’s left hip does not manifest with: extension limited to 5 degrees as contemplated by the 10 percent rating criteria under DC 5251; flexion limited to 45 degrees as contemplated by the 10 rating criteria under DC 5252; or abduction of motion lost beyond 10 degrees as contemplated by the 20 percent rating criteria under DC 5253. To point, per the examination report, at worst the Veteran’s flexion is limited to 0 to 100 degrees, extension from 0 to 20 degrees, and abduction from 0 to 35 degrees. Additionally, the Board does not find there to be any other evidence of record for this period on appeal, medical or lay, that would in any way contradict the September 2020 VA examiner’s findings or suggest that the Veteran’s disability has since worsened. While Veteran’s left hip was limited in range of motion with extension and flexion, the September 2020 VA examiner did not find that the Veteran exhibited pain during that portion of the testing, nor do the Veteran’s statements suggest otherwise as he indicated experiencing pain primarily with twisting and turning. See September 2020 VA examination report. As such, the Board does not find that minimum compensable ratings for limitation of extension and flexion are warranted pursuant to 38 C.F.R. § 4.59. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for limitation of abduction, and compensable ratings for limitation of extension and flexion. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to a compensable disability rating prior to December 5, 2019, and in excess of 40 percent thereafter, for status post bladder rupture The Veteran contends that he is entitled to a higher rating for his service-connected status post bladder rupture. See August 2012 Notice of Disagreement; November 2018 Board hearing testimony. Initially, the Board notes that upon remand the Veteran was awarded a 40 percent disability increase effective December 5, 2019. See October 2020 RD. Accordingly, the Board’s review of the Veteran’s increased rating claim will address both period on appeal, namely prior to December 5, 2019, and thereafter. The Veteran’s disability is rated pursuant to 38 C.F.R. § 4.115a, Diagnostic Code (DC) 7517. DC 7517 directs bladder injuries to be rated under the code for voiding dysfunction. Voiding dysfunction is rated based on urine leakage, frequency, and obstructed voiding. Urinary leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a. The criteria for urinary frequency allow for 20 percent rating when there is a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. 38 C.F.R. § 4.115a. A daytime voiding interval of less than one hour, or; awakening to void five times per night warrants a 40 percent rating. Id. The highest available rating for obstructed voiding is a 30 percent rating warranted for urinary retention requiring intermittent or continuous catheterization. Id. For the period prior to December 5, 2019… The Veteran was afforded a VA examination in March 2012, and the VA examiner indicated therein that the Veteran does not suffer a voiding dysfunction stating that the disability had resolved with residuals and no functional impairment. The VA examiner also found that the Veteran does not have a history of urethral or bladder calculi, bladder or urethral infections. During the Veteran’s November 2018 Board hearing, he indicated that he has to wake at night, at least once maybe twice, due to urinary frequency, and suffers daily leakage three or four times a day. These reports were confirmed/indicated by the December 2019 VA examiner. To point, the VA examiner noted that the Veteran suffers from a voiding dysfunction that causes urinary leakage requiring absorbent material which must be changed 2 to 4 times per day. The VA examiner also indicated that the Veteran suffers from increased urinary frequency causing nighttime awakening to void 2 times. Accordingly, as the Veteran’s Board hearing testimony indicates that his worsening symptomatology dates back earlier than the effective date assigned for his increased 40 percent disability rating, the Board resolves reasonable doubt and assigns him an earlier effective date of November 8, 2018 for the 40 percent rating, the date when the increase in the level of severity of his bladder disability can be reasonably ascertained based upon its review of the evidence of record. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date and the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of severity can be ascertained). As to whether the Veteran entitled to increased rating in excess of 40 percent prior to December 5, 2019, the Board does not find evidence revealing that the Veteran’s disability ever required the use of absorbent material which must be changed more than 4 times per day as contemplated by the next highest rating criteria. Rather the most probative evidence reveals that since November 8, 2018, the Veteran’s disability resulted in urine leakage that would require the use of absorbent material that must be changed 2 to 4 times per day. The Veteran indicated that absorbent material wasn’t being used but indicated that his symptoms indicated the need for absorbent material that he would be obtaining. See November 2018 Board hearing transcript. Additionally, prior to the Veteran’s Board hearing testimony, the record does not demonstrate evidence of the need for absorbent materials either by lay or medical evidence. See also December 13, 2011, June 17, 2014, August 14, 2016 VA treatments records (all indicating that the Veteran does not suffer from bladder control issues.) Therefore, the Board finds that a compensable rating is not warranted prior to November 8, 2018, for the Veteran’s service-connected bladder disability. For the period from December 5, 2019 to present… As previously indicated, per the December 2019 VA examination report, the Veteran suffers from a voiding dysfunction that causes urinary leakage requiring absorbent material which must be changed 2 to 4 times per day. The VA examiner also indicated that the Veteran suffers from increased urinary frequency causing nighttime awakening to void 2 times. These findings are reflective of the Veteran’s lay reports of his observable symptomatology, and therefore the Board affords the December 2019 VA examination significant probative value. See November 2018 Board hearing testimony. Other than being prescribed absorbent material for his disability, the Board does not find any other evidence, medical or lay, that would warrant a rating in excess of 40 percent for the period from December 5, 2019 to present, and therefore, to that extent the Veteran’s increased rating claim is denied for this period. 6. Entitlement to a compensable rating for tension headaches The Veteran contends that he is entitled to a higher rating for his service-connected tension headaches. See August 2012 Notice of Disagreement; November 2018 Board hearing testimony. The Veteran’s tension headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Board concludes that the Veteran’s migraines have occurred with less frequent attacks without characteristic prostrating attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. The Veteran was afforded a March 2012 VA examination, and per the report the Veteran stated that he has had the same headaches since his motor vehicle accident (MVA) in service in 1982 and that the headaches start on the left side and last for 20 minutes to an hour for which he takes Tylenol. As to their frequency, the Veteran stated that they occur every 2-3 months at minimum. The VA examiner indicated that the pain begins behind the Veteran’s left eye with a steady dull ache, with occasional light sensitivity. Importantly, the March 2012 VA examiner indicated that the Veteran’s headaches do not manifest with characteristic prostrating attacks of migraine headache pain, nor do they manifest with prostrating attack of non-migraine headache pain. Id. Lastly, the VA examiner indicated that the Veteran’s headaches do not impact his ability to work. The Veteran’s traumatic brain injury disability was examined in June 2017, and the VA examiner elicited from the Veteran that relative to his tension headaches disability, they cause him to wake at night but that he is generally able to fall back asleep quickly. Relative to the aforesaid medical findings, during the Veteran’s Board hearing, he indicated that his condition had worsened since the March 2012 VA examination, and therefore the Board remanded his claim in June 2019 in order to obtain a new VA examination to assess the current severity level of his disability. Upon remand, the Veteran was afforded a December 2019 VA examination. Therein, the VA examiner indicated that the Veteran suffers pulsating or throbbing head pain with sensitivity to light. The duration of the Veteran’s headache pain was noted as being constant, on both sides of the head, but without manifestations of characteristic prostrating attacks of migraine/non-migraine headaches. The VA examiner also indicated that the Veteran does not suffer from very prostrating attacks of migraines/non-migraine pain productive of severe economic inadaptability. Lastly, the VA examiner indicated that the Veteran does not suffer from any other pertinent physical findings, complications, conditions, signs or symptoms, and his disability does not impact his ability to work. Id. The Veteran is competent to report headache symptomatology as those symptoms are readily observable; however, upon review of the record, the Board does not find any evidence, medical or lay, that the Veteran’s headaches are productive of migraines with prostrating attacks. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To point, the Veteran’s Board hearing testimony reveals that relative to his headache disability he has good and bad days. See November 2018 Board hearing testimony. On good days his headaches are not as severe and are typically alleviated with medication. On bad days, the Veteran indicated that he struggles with his headache pain, but not to the extent of having to leave work to lay down. The Veteran stated that the frequency of the headache pain has greatly increased since last being examined by the VA, as they now occur more regularly. The Board does not find the severity level rises to the level contemplated by the next highest rating criteria. While the Veteran submitted a January 2019 private medical opinion indicating that his headache symptomatology is related to his MVA during service, the opinion does not assess the current severity level, and therefore, for purposes of rating the Veteran’s disability, the Board assigns the opinion no probative value. Accordingly, the Board finds that the Veteran’s migraine headaches meet the criteria for a noncompensable rating under DC 8100. In sum, the Board concludes that the Veteran’s migraines did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period, and therefore a compensable rating under DC 8100 is not warranted. REASONS FOR REMAND 7. Entitlement to a compensable disability rating prior to September 29, 2020, and in excess of 10 percent thereafter, for status post fracture of the left ankle Upon review, the Board finds that the evidence of record indicates there may be an outstanding private treatment record pertinent to its adjudication of the Veteran’s increased rating claim for his left ankle disability. To point, per a January 2019 correspondence, the Veteran indicated that he saw his primary care physician in December 2018 and was prescribed an ankle brace for his left ankle. Upon review, the Board does not find that the aforesaid record has been associated with the Veteran’s claims file. Therefore, unfortunately, the Board finds that another remand is required prior to the adjudication of the Veteran’s increased rating claim in order to obtain a pertinent medical record that could substantially impact its outcome. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the treatment received from his primary care physician Dr. Gno in December 2018. See January 2019 correspondence. Make two requests for the authorized record from Dr. Gno, unless it is clear after the first request that a second request would be futile. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.