Citation Nr: 21013582
Decision Date: 03/09/21	Archive Date: 03/09/21

DOCKET NO. 16-62 549
DATE: March 9, 2021

ORDER

The claim of entitlement to an initial compensable rating for sinusitis is denied.

The claim of entitlement to an initial compensable rating for headaches starting from May 1, 2012, is denied.  A 10 percent rating, but no higher, is warranted starting from August 17, 2013.  A 50 percent rating, but no higher, is warranted starting from October 13, 2019.

A 70 percent initial rating for posttraumatic stress disorder, post-concussive syndrome and traumatic brain injury (PTSD and TBI) is granted, effective from May 1, 2012.

The claim of entitlement to a separate compensable rating for residuals of TBI is denied.

The claim of entitlement to an initial rating higher than 10 percent for right ankle strain is denied.

The claim of entitlement to an initial rating higher than 10 percent for left ankle strain is denied.

The claim of entitlement to an initial rating higher than 10 percent for right hip impairment (limitation of abduction or rotation) is denied.

The claim of entitlement to an initial compensable rating for right hip limitation of flexion is denied.

A 10 percent initial rating for right hip limitation of extension is granted, effective May 1, 2012.  

The claim of entitlement to an initial rating higher than 10 percent for right elbow limitation of flexion is denied.

The claim of entitlement to an initial rating higher than 10 percent for right elbow limitation of pronation starting from May 1, 2012, is denied.  A 20 percent rating, but no higher, is granted effective October 13, 2019.

The claim of entitlement to an initial rating higher than 20 percent for right shoulder strain with degenerative changes starting from May 1, 2012, is denied.  A 30 percent rating, but no higher, is granted effective October 13, 2019.

The claim of entitlement to an initial rating higher than 20 percent for left shoulder strain with degenerative changes is denied.

The claim of entitlement to an initial rating higher than 10 percent for right knee patellofemoral syndrome with degenerative changes is denied.

The claim of entitlement to an initial rating higher than 10 percent for left knee status post ACL repair with degenerative changes is denied.

The claim of entitlement to an initial rating higher than 10 percent for thoracolumbar strain with degenerative changes starting from May 1, 2012, is denied.  A 40 percent rating, but no higher, is granted effective February 23, 2016.  

A 20 percent for right lower extremity radiculopathy is granted effective May 1, 2012.

A 20 percent for left lower extremity radiculopathy is granted effective May 1, 2012.

The claim of entitlement to a total rating due to individual unemployability (TDIU) is moot.

REMANDED

The claim of entitlement to service connection for an eye disability is remanded.

The claim of entitlement to an initial rating higher than 10 percent prior to October 13, 2019, and higher than 20 percent thereafter, for cervical strain with degenerative disc disease is remanded.

FINDINGS OF FACT

1. The Veteran’s sinusitis does not manifest with at least one incapacitating episode per year requiring prolonged (lasting four to six weeks) antibiotic treatment or with at least three non-incapacitating episodes per year.

2. At the start of the appeal period, the Veteran’s headaches manifested with less frequent attacks.  As of August 17, 2013, it is factually ascertainable that his headaches manifested with characteristic prostrating attacks at least once every two months.  As of October 13, 2019, his headaches manifested with very frequent completely prostrating attacks productive of severe economic inadaptability.

3. The Veteran’s combined PTSD and TBI have manifested with social and occupational impairment with deficiencies in most areas for the entire period on appeal.

4. Since the effective date of service connection, his TBI has not manifested with any symptoms that are not already being compensated for under other diagnostic codes.

5. Throughout the appeal period, the Veteran’s right ankle has manifested with painful and moderate limited range of motion.

6. Throughout the appeal period, his left ankle has manifested with painful and moderate limited range of motion.

7. Throughout the appeal period, the Veteran’s right hip abduction has not been lost beyond 10 degrees.

8. Throughout the appeal period, his right hip flexion has well-exceeded 45 degrees.

9. At the start of the appeal period, his right hip extension was limited to 5 degrees.

10. Throughout the appeal period, the Veteran’s right elbow flexion has well-exceeded 90 degrees.

11. Throughout the appeal period, his right elbow supination has well-exceeded 30 degrees, but at the October 13, 2019, VA examination, his pronation was reduced and does not approach full pronation.  

12. At the start of the appeal period, the Veteran’s right shoulder manifested with painful motion limited to shoulder level; but, at the October 13, 2019, VA examination, his right shoulder motion was functionally limited to midway between the side and shoulder level.

13. At the start of the appeal period, his left shoulder manifested with painful motion limited to shoulder level; but, at the October 13, 2019, VA examination, his left shoulder motion was functionally limited to midway between the side and shoulder level.

14. Throughout the appeal period, the Veteran’s right knee disability has manifested with painful motion and reduced flexion well-exceeding 30 degrees.

15. Throughout the appeal period, his left knee disability has manifested with painful motion and reduced flexion well-exceeding 30 degrees.

16. At the start of the appeal period, the Veteran’s lumbar spine disability manifested with painful motion flexion functionally reduced to 80 degrees.  At a February 23, 2016, private treatment appointment, his flexion was functionally reduced to 20 degrees.    

17.  The Veteran’s right lower extremity radiculopathy was diagnosed during his service, and is manifested by moderate incomplete paralysis of the sciatic nerve for the entire period on appeal.

18. His left lower extremity radiculopathy was diagnosed during his service, and is manifested by moderate incomplete paralysis of the sciatic nerve for the entire period on appeal.

19. As of this decision, the Veteran’s combined disability rating is 100 percent for the whole rating on appeal, and there is no argument or evidence that his unemployability is due to any single service-connected disability.

CONCLUSIONS OF LAW

1. The criteria are not met for a compensable initial rating for sinusitis at any time during the appeal period.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.97, DC 6512.

2. The criteria are not met for an initial compensable rating for headaches prior to August 17, 2013.  The criteria are met for a 10 percent rating, but no higher, starting from August 17, 2013.  The criteria are met for a 50 percent rating, but no higher, from October 13, 2019.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.3, 4.7, 4.20, 4.124a, DC 8100.

3. The criteria are met for an initial 70 percent rating for PTSD, post-concussive syndrome, and TBI, effective from May 1, 2012.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.124A, 4.130, DC 8045-9411.

4. The criteria are not met for a separate compensable rating for TBI.  38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.400, 4.124A, DC 8045.

5. The criteria are not met for an initial rating higher than 10 percent for right ankle strain at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.30, 4.40, 4.45, 4.59, 4.71a, DC 5271.

6. The criteria are not met for an initial rating higher than 10 percent for left ankle strain at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.30, 4.40, 4.45, 4.59, 4.71a, DC 5271.

7. The criteria are not met for an initial rating higher than 10 percent for right hip limited abduction at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5253.

8. The criteria are not met for an initial compensable rating for right hip limited flexion at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252.

9. The criteria are met for an initial 10 percent rating for right hip limited extension, starting from May 1, 2012.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251.

10. The criteria are not met for an initial rating higher than 10 percent for right elbow limitation of flexion at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, DC 5206.

11. The criteria are met for a 20 percent rating, but not higher, for right elbow limitation of pronation effective October 13, 2019, but not earlier.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, DC 5213.  

12. The criteria are met for a 30 percent rating, but no higher, for right shoulder strain with degenerative changes effective October 13, 2019, but not earlier.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5201.

13. The criteria are not met for an initial rating higher than 20 percent for left shoulder strain with degenerative changes at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5201.

14. The criteria are not met for an initial rating higher than 10 percent for right knee patellofemoral syndrome with degenerative changes at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260

15. The criteria are not met for an initial rating higher than 10 percent for left knee status post ACL repair with degenerative changes at any time during the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260.

16. The criteria are met for a 40 percent rating, but no higher, for thoracolumbar spine strain with degenerative changes effective February 23, 2016, but no earlier.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242.

17. The criteria are met for a 20 percent rating, but no higher, for right lower extremity radiculopathy, effective May 1, 2012.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, DC 8520.

18. The criteria are met for a 20 percent rating, but no higher, for left lower extremity radiculopathy, effective May 1, 2012.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, DC 8520.

19. The Veteran’s application for TDIU is mooted.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1992 to April 2012.

This appeal is from a May 2013 rating decision.  In January 2019, these appeals were remanded for additional development, which has been completed.  The Veteran has not raised any issue regarding the development of any of the claims.

Increased Rating

Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes (DCs) identify the various disabilities.  See generally 38 C.F.R. Part 4.  If two disability evaluations are potentially applicable, 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.  Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Consistent with the facts, separate evaluations may be assigned for separate periods of time based on the facts found—that is, the evaluations may be “staged.” Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Indeed, many of the Veteran’s disability ratings have been staged.

1. The claim of entitlement to an initial compensable rating for sinusitis is denied.

The Veteran has appealed his noncompensable rating for sinusitis.  

His sinusitis is currently rated under DC 6512, which pertains to chronic frontal sinusitis.  Under this DC, a noncompensable rating is assigned when the sinusitis is detected by X-ray alone.  A 10 percent rating is assigned when there are 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 discharged or crusting.  A 30 percent rating is assigned for 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 rating is assigned for 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 6512.

A review of the record shows the Veteran was given a VA examination for sinusitis in February 2012.  At that time, he was noted to have sinusitis diagnosed due to reconstructive surgery following a motor vehicle accident.  He reported having constant congestion and one episode of sinusitis once per year.  The Board notes that his post-service VA treatment records are complete from November 2012 through November 2020, and do not show any treatment for sinusitis, let alone at least four weeks of antibiotic treatment for sinusitis.  He has not asserted having any more than one episode of non-incapacitating sinusitis.  Accordingly, a compensable rating is not shown to be warranted.

The Board notes the Veteran has not commented on his sinusitis at all during the pendency of this claim, and therefore has also not reported any increase in severity of his sinusitis since his claim was granted.  The record does not otherwise suggest an increase in severity, thus there is no need to schedule an updated examination.  The mere passage of time is insufficient to require a new VA examination without some other indication that the record is inadequate to make a decision.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), see Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  The Board notes he has not raised any issue with the February 2012 VA examination.  There is no indication that there are outstanding sinus treatment records that have not been associated with the claims file.  The Veteran was notified in the October 2016 SOC (statement of the case) that the record did not show that he had any compensable symptoms of sinusitis, and in the November 2020 SSOC (supplemental statement of the case) that no new evidence had been received to increase his rating.  He has had ample time to provide information in support of this claim, which could have been crucial to the issue, but nothing has been received.  

Accordingly, a compensable rating for sinusitis is denied.

2. The claim of entitlement to an initial compensable rating for headaches starting from May 1, 2012, is denied.  A 10 percent rating, but no higher, is warranted starting from August 17, 2013.  A 30 percent rating, but no higher, is warranted starting from October 30, 2019.

The Veteran’s headaches are currently rated noncompensably for the entire period on appeal.

Under DC 8100, a noncompensable rating is warranted for headaches with less frequent attacks.  A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, DC 8100.

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

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 headache attacks that typically produce extreme exhaustion or powerlessness.  

The rating criteria for a 50 percent rating contains several undefined phrases.  The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating.  Johnson, 30 Vet. App. at 253.  The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless.  Id.  The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.”  Id (internal citation omitted).  Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.”  Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Turning to the evidence, the Board finds that a 10 percent rating is warranted starting from August 17, 2013.  This is the date of a VA examination for his TBI that noted he had headaches at least once per week that varied in intensity from mild to severe.  The Veteran reported that his headaches required him to lay down approximately once every one or two months.  In resolving doubt in his favor, this meets the criteria for a 10 percent.  

Prior to that, the evidence does not show that his headaches were characteristically prostrating, and he has not provided any additional details regarding his headache symptoms or the treatment they require.  The February 2012 VA examiner opined that the headaches were not characteristically prostrating.  Notably, at the examination, the Veteran did not describe having any symptoms that would typically lead to prostration, such as sensitivity to sound, nausea, or vomiting.  He reported the headaches lasted less than a day, which further weighs against them meeting the criteria for characteristically prostrating, or productive of extreme exhaustion or powerlessness.  He did report having sensitivity to light and sound during his VA TBI examination, but no indication of how frequent he had these symptoms.  Further, the record does not show a history of characteristically prostrating headaches that were productive of extreme exhaustion or powerlessness.  The Board notes that in October 2011, he reporting having brief headaches two or three times per month, and in December 2011, he reported his headaches were starting to last longer than they had, but he also denied having any associated symptoms, including nausea, queasiness, dizziness, visual changes, and aura.  He was prescribed an abortive headache medicine, and released without limitations.  It was noted if his symptoms increased then he may need prophylaxis.  In sum, the record does not show that his headaches were productive of extreme exhaustion or powerlessness prior to August 17, 2013. 

The Board does not find that a rating higher than 10 percent is warranted until the October 2019 VA examination, as discussed in the next paragraph.  The record does not show any consistent treatment or complaints for headaches during this time period.  He denied having a headache in June 2014 and July 2019.  In July 2017, he reported having a headache, but nothing further was noted.  The record does not suggest having characteristically prostrating headaches more than once every few months prior to October 2019, and the Veteran has not alleged.  He has not provided any statements detailing the severity of his headaches at any time during the appeal period.  

Finally, as mentioned, the Board finds that a 50 percent rating is warranted as of the October 13, 2019, VA examination.  At this examination, the VA examiner opined the headaches were characteristically prostrating.  That examiner opined that the Veteran had less frequent attacks, but also noted the Veteran reported having “headaches with the below symptoms approximately 4-5 times a week.”  The symptoms include constant head pain, throbbing pain, pain on both sides, pain that worsens with activities, nausea, vomiting, sensitivity to light, sensitivity to sound.  Given that they were found characteristically prostrating due to the symptoms reported, and they occurred four or five times a week, the Board finds them to be very frequent.  The symptoms reported, particularly the nausea and vomiting, would render him completely prostrating.  The attacks were shown to be less than one day, which does not meet the criteria for prolonged, but the Board finds that their potential for being on multiple consecutive days is a close enough approximation of prolonged.  Finally, the Veteran worked as a handyman.  The October 2019 VA examination report notes that the Veteran’s pain increased with physical activity, thus the severity of his headaches was impacted by his work.  Given the accompanying symptoms he reported at the examination, it is more likely than not that his headaches would be capable of producing severe economic inadaptability.  Accordingly, a 50 percent rating is warranted from October 30, 2019.  This is the highest rating available under DC 8100.

3. A 70 percent initial rating for posttraumatic stress disorder, post-concussive syndrome and traumatic brain injury (PTSD and TBI) is granted, effective from May 1, 2012.

4. The claim of entitlement to a separate compensable rating for residuals of TBI is denied.

The Veteran’s PTSD and TBI were initially service-connected as two separate disabilities, with PTSD assigned a 30 percent rating and TBI assigned a 10 percent rating.  During the pendency of his appeal, the AOJ (agency of original jurisdiction) combined the ratings into one combined rating, with an assigned rating of 50 percent.  The Veteran has appealed these decisions.

The Veteran’s PTSD and TBI is currently rated 50 percent disabling under DC 8045-9411, which pertains to TBI and PTSD, respectively.  38 C.F.R. §§ 4.124a, 4.130; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning diagnostic criteria to unlisted disabilities, including the use of hyphenated ratings).  Here, the Veteran’s hyphenated diagnostic code indicates that his TBI is rated as part of his PTSD.  This is because, under DC 8045 for TBI, when there is a comorbid mental diagnosis and the symptoms from each diagnosis overlap, then the rater is directed to use the criteria that results in the highest rating for the Veteran, as discussed below.

Under DC 8045, there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require separate evaluation. 38 C.F.R. § 4.124a, DC 8045. 

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. 

Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 

The rater is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and, endocrine dysfunctions. 

The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed 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 rater should consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. 

Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and 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. 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. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 

The table titled “Evaluation of Cognitive Impairment And Other Residuals of TBI Not Otherwise Classified” provides the following evaluations: 

Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (0) No complaints of impairment of memory, attention, concentration, or executive functions; (1) A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; (2) Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (3) Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. 

Impairment of judgment is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired judgment - For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; (2) Moderately impaired judgment - For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; (3) Moderately severely impaired judgment - For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and (Total) Severely impaired judgment - For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. 

Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. 

Impairment of orientation is assigned numerical designations as follows: (0) Always oriented to person, time, place, and situation; (1) Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; (2) Occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. 

Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (0) Motor activity normal; (1) Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); (2) Motor activity mildly decreased or with moderate slowing due to apraxia; (3) Motor activity moderately decreased due to apraxia; and (Total) Motor activity severely decreased due to apraxia. 

Impairment of visual spatial orientation is assigned numerical designations as follows: (0) Normal; (1) Mildly impaired - Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as GPS (global positioning system); (2) Moderately impaired - Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS; (3) Moderately severely impaired - Gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and (Total) Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. 

Subjective symptoms are assigned numerical designations as follows: (0) Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety; (1) Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and (2) Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. 

Neurobehavioral effects are assigned numerical designations as follows: (0) One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; (1) One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; (2) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and (3) One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. 

Impairment of communication is assigned numerical designations as follows: (0) Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; (1) Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas; (2) Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas; (3) Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs; and (Total) Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. 

Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, DC 8045.

Note (1): 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 co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 

Under DC 9411, a 50 percent evaluation is warranted for PTSD where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.

A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  Id. 

100 percent evaluation requires 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, memory loss for names of close relatives, own occupation, or own name.  Id. 

Initially, the Board does not find that a separate compensable rating is warranted for residuals of TBI.  His TBI symptoms overlap with his PTSD symptoms, and to have two separate ratings addressing the same symptoms results in duplicative compensation, or “pyramiding,” which is prohibited.  38 C.F.R. § 4.14.  Further, the symptoms and portion of impairment were not able to be specifically attributed to either diagnosis.  The examination reports show that the majority of his complaints are of symptoms that could be addressed in both the TBI and PTSD criteria.    

The February 2012 VA examiner found Level 3 impairment in memory, attention, concentration, and executive functions, and neurobehavioral effects.  The Veteran reported difficulty maintaining focus, retaining new information, organizing his thoughts, and having intense frustration over misplacing things repeatedly; and, irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, infrequent destruction of property, apathy, lack of empathy, and anhedonia.  He had Level 2 impairment in judgment, social interaction, and communication. He reported that he had difficulty weighing the pros and cons of situations and that he was often unable to make a decision.  He reported avoiding social activity and interaction with friends, and that he finds he is unpredictably irritable towards others, which makes him feel guilty.  The examiner noted the Veteran had chronic difficulty communicating or comprehending spoken and written language.  Finally, he was found to have Level 1 impairment in orientation and visual spatial orientation. He reported that he will occasionally forget how he got from point A to point B, forget where he is going while en route, find himself “turned around” in a familiar location, or make a wrong turn on a familiar route.  These are all symptoms that would be addressed under the criteria applicable to PTSD.  38 C.F.R. § 4.130, DC 9411.  Further, the VA examiner (who also conducted the VA PTSD examination) opined that it would not be possible to differentiate what portion of the Veteran’s impairment was due to TBI and which was due to PTSD, as the symptoms overlapped, which supports rating these symptoms as a combined disability rating.    

The February 2012 VA examiner also opined that the Veteran had Level 3 impairment in motor functioning due to apraxia, and that the Veteran reported Level 2 impairment subjective symptoms.  

As for the apraxia, the Board notes that the preponderance of the evidence weighs against him having apraxia at all since the effective date of service connection for the residuals of his TBI.  Indeed, later VA examinations conducted in August 2013 and October 2019, scheduled specifically to assess the residual symptoms of his TBI, did not identify the Veteran having any problems due to apraxia.  His post-service treatment records do not show a diagnosis of apraxia, or that his TBI has caused any motor functioning problems, and he has not so alleged.  Indeed, in the statement he submitted pertaining to his TBI symptoms, he reported having impaired memory, lack of motivation, difficulty remembering commands, difficulty maintaining focus, trouble concentrating, forgetting once-familiar routes, and trouble remembering complex instructions, which would all be addressed under the criteria for PTSD.  As the preponderance of the evidence weighs against this being present during the appeal period, a rating on the basis of motor activity is not warranted.  McClain v. Nicholson, 21 Vet. App. 319 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 

As for the subjective symptoms reported at the February 2012 VA examination, the Veteran reported feeling panic and anxiety, which is rated under his PTSD.  He reported marked fatigue, which can be attributed to PTSD, as chronic sleep impairment has been found to be one of his symptoms.  He reported having tinnitus and headaches, which are service-connected.  He reported hearing loss, but hearing loss testing did not show a hearing loss diagnosis.  See 38 C.F.R. § 3.385.  He reported blurred vision, but was also shown to have uncorrected vision to 20/40 or better, which is normal vision.  He reported light sensitivity, which has been attributed to an in-service surgery to correct his vision, and not to his TBI.  Further, it would be considered as a symptom in determining the severity of his headaches, and is compensated for under DC 8100.  Finally, he reported having sensitivity to sound, which would also be considered under DC 8100.  Accordingly, the Board does not find that there are any additional symptoms noted at the February 2012 VA examination that would warrant a separate rating for TBI.   

At the August 2013 VA TBI examination, he complained of memory and concentration troubles, which corresponded to Level 2 impairment.  The VA examiner noted that neuropsychological testing showed neurocognitive anomalies in verbal learning and executive functioning.  He also reported neurobehavioral effects, including irritability and a lack of motivation, which correspond to Level 1 impairment.  These are all symptoms that would be addressed under the criteria applicable to PTSD.  38 C.F.R. § 4.130, DC 9411.  Indeed, the August 2013 VA PTSD examiner opined that the Veteran’s cognitive symptoms overlapped with the PTSD symptoms, and that it was not possible to differentiate the symptoms attributable to each diagnosis, nor what portion of impairment attributable to each diagnosis, which supports rating all the symptoms under a combined rating.  The Board notes that the Veteran reported no additional symptoms, including motor or subjective, that are not being compensated.

The October 2019 VA PTSD examiner opined that the Veteran’s TBI symptoms appear to be more frontal oriented than temporal, central, or posterior, which results in his dominant symptoms including mood instability, emotional dysregulation, and executive dysfunction.  These symptoms would be compensated for under the criteria applicable to his PTSD.  

At the October 2019 VA TBI examination, the Veteran was found to have Level 1 impairment in memory, attention, concentration, and executive functions, in social interactions, and in neurobehavioral.  He reported mild memory loss, an avoidance of crowds and social interactions, irritability, lack of motivation, and moodiness.  All of these symptoms are addressed by the PTSD criteria, and the examiner opined that the cognitive symptoms overlapped with PTSD.  The Veteran complained of subjective anxiety, which is rated under PTSD, and also of headaches, which are separately rated.  The Board finds that the most recent VA examination does not show that a separate rating for TBI is warranted.  

The Board finds that the criteria that pertains to PTSD allows for a better assessment his symptoms.  The Board notes that the potential for a 100 percent (total) rating under the PTSD criteria is greater than under the TBI criteria, which only allows for a total rating under certain circumstances, at times requiring objective testing showing a high level of impairment.  The rating for 100 percent under the PTSD criteria do not require objective testing at all, and allow for the consideration of a wider array of symptoms that affect functioning than that TBI criteria.  

The Board finds that the evidence supports an initial 70 percent rating for his PTSD and TBI combined.  The February 2012 VA examiner opined the Veteran had social and occupational impairment with deficiencies in most areas, and that “every realm of [his] life requires extreme effort to function in the midst of intense symptoms.”  Symptoms included persistently depression and anxiety, sleep impairment, weekly panic attacks, memory loss and impaired short term memory, disturbances of mood, impaired judgment, impaired impulse control, difficulty in establishing new relationships, difficulty adapting to stress, and disorientation.  

The August 2013 VA examiner noted objective testing showed reduced ability to initially encode detailed verbal information, to use visual logic and reasoning, and an impairment in establishing, maintaining, and shifting mental steps, all of which would significantly impair working, as well as thought processes, and judgment.  The examination report shows that the Veteran wakes up screaming twice per week, which was an improvement.  He had persistent depression and anxiety.  The Veteran reported increased anxiety upon seeing emergency vehicles, and that he avoided crowds, hospitals, and anything relating to war or trauma.  He reported no longer enjoying things he used to do, and intense pressure to not let other people down.  He reported being overly protecting of his daughter.  These symptoms would significantly impair family relations, as well as social interactions, and also show impaired thought processes and mood.  The Board finds this examination supports the criteria for a 70 percent rating, although the examiner did not specifically opine the Veteran met this level of severity.  

The record shows the Veteran continued to treat his mental health symptoms during the appeal period, and that his symptoms show impairment with deficiencies in most areas.  In April 2016, he reported hiding his depression and anxiety from his family so they would not worry about him, resulting in avoiding people.  He reported being very easily frustrated.  He felt edgy and unfocused, and that he was getting angry and reacting at small things.  In April 2017, he reported passive thoughts of suicide.  He was noted to be depressed, with impaired memory and concentration.  In October 2017, he reported ongoing symptoms of depression, with anger and isolating behaviors.  In July 2019, he made the decision to sign a family member’s birth certificate and was subsequently prosecuted for fraud.  He reported that he had been trying to help and had thought his wife had agreed that the action was indicated.  The record shows he often depends upon his wife to provide such assistance, and that the birth certificate incident caused him to have trouble for a period of time trusting her.  This coincided with a head injury that exacerbated his TBI and PTSD symptoms, in September 2019.  

The October 2019 VA examiner opined that a September 2019 head injury exacerbated the Veteran’s mood symptoms, and that he had chronic depression, anxiety, and suspiciousness.  Significantly, he had impairment of short and long term memory, which means that he forgets both newly learned and highly learned material.  He also had mild memory loss, such as forgetting names, directions, or recent events, and memory loss for names of close relatives, own occupation, or own name.  His memory troubles would severely impact functioning in work, school, family relations, judgment, and thinking.

In sum, the Board finds the Veteran’s PTSD and TBI symptoms support a 70 percent rating under DC 9411 for the entire period on appeal.

The Board does not find that a total rating is warranted, he does not have total impairment from his PTSD and TBI.  The record shows the Veteran has, for the most part, a supporting relationship with his family.  He and his wife were attempting to obtain custody of a relative’s baby, which would not be possible if the Veteran was totally impaired.  In June 2019, he was accepted into the Vocational Rehabilitation program, with the finding that a goal was reasonably feasible, which would not be possible if he was totally impaired.  Prior to that, he was working occasionally with members of the public, which would not be possible at all if he was totally impaired.  The Board notes that he has not displayed grossly inappropriate behavior, or gross impairment in thoughts or communication.  He has not been found to be a danger to himself or others, or to have persistent delusion or hallucinations.  

The Board notes that the February 2012 VA PTSD examiner noted one of the Veteran’s symptoms was disorientation to time or place, which is among the symptoms listed as examples of criteria that would meet the 100 (or total) criteria for PTSD.  38 C.F.R. § 4.130, DC 9411.  The Board notes that this symptom was identified by the February 2012 VA TBI examiner, who indicated the Veteran occasionally was disoriented to one of the four aspects.  The PTSD VA examiner did not elaborate, but the TBI examiner noted the Veteran reported that he occasionally loses track of where he is going and has to call his wife or someone to help.  This is the extent of his disorientation documented in the record, which shows that he was generally oriented.  The Veteran has not asserted he has persistently disoriented to time or place and the record does not support that this symptom is present to an extent to cause total impairment.    

The Board notes that the October 2019 VA PTSD examiner noted that one of the Veteran’s symptoms was memory loss for names of close relatives, own occupation, or own name.  Unfortunately, the examiner did not clarify this, and the record does not otherwise show the Veteran to have forgotten his name, the names of his close relatives, or his job.   This symptom is not shown otherwise in the record as a persistent symptom, and the Veteran has not so alleged.  The Board does not find that the evidence shows this symptom is or has been present to an extent to cause total impairment.  

Accordingly, an initial 70 percent, but no higher, is warranted for PTSD and TBI.

5. The claim of entitlement to an initial rating higher than 10 percent for right ankle strain is denied.

6. The claim of entitlement to an initial rating higher than 10 percent for left ankle strain is denied.

The Veteran’s right and left ankles are each rated 10 percent disabling under DC 5271, which pertains to limited motion of the ankle.  38 C.F.R. § 4.71a, DC 5271.  Pursuant to this code, marked limitation warrants a 20 percent rating, while moderate limitation warrants a 10 percent rating.  Id.  The normal range of motion of the ankle is from 0 to 20 degrees for dorsiflexion, and from 0 to 45 degrees plantar flexion.  Id., Plate II.

The Board notes that the regulations pertaining to rating the ankles have been amended, effective February 7, 2021.  See 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271).  These amendments provide specific ranges of motions required to meet the diagnostic criteria.  The Board notes that these amendments are not applicable any earlier than their effective date.  As there is no evidence dated after February 7, 2021, these amendments are not for application.  

When evaluating disabilities that are based on limited motion, it is necessary to consider both the schedular criteria and any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  

Based on a review of the evidence, the Board does not find that a higher rating is warranted for either ankle.  

The Veteran’s ankles were subject to VA examinations in February 2012 and October 2019.  

At both examinations, the Veteran had full range of motion.  However, he complained of pain on use in both ankles.  In February 2012, he had pain starting at 30 degrees plantar flexion and 15 degrees dorsiflexion in the right, and pain starting at 35 degrees plantar flexion and 15 degrees dorsiflexion on the left.  At the October 2019 examination, the examiner noted the Veteran had pain in both ankles in both dorsiflexion and plantar flexion, which did not cause functional loss.  The Board finds that this evidence corresponds to his current 10 percent ratings.  He had full range of motion, which is noncompensable, but he had painful motion and motion that is limited due to pain during flares and over time, which accounts for his 10 percent, the minimum rating for the ankle.  38 C.F.R. § 4.59.

The evidence does not show marked limitation of motion in either ankle, as he has full range of motion.  The Board has considered whether a higher rating is warranted based on functional loss.  The October 2019 VA examiner opined that pain would significantly limit functional ability after repeated use over time and during flares, reducing to 35 degrees plantar flexion and 15 degrees dorsiflexion bilaterally.  The Board notes these are approximately identical to the points at which the Veteran objectively showed painful motion during his February 2012 VA examination.  This constitutes functional loss, however, but only to the level of 10 percent, or moderate limitation of motion.  The examiner opined his range of motion would decrease due to pain by only 15 degrees out of the possible 65 degree range (10 degrees of plantar flexion and 5 degrees of dorsiflexion), which is less than a 25-percent reduction in range.  Although not defined in the regulations, the Board does not find this level of loss equates or approximates a “marked” limitation of motion, which would more likely be found when there is a 50-percent or more loss of range.  Further, neither examination report indicates the Veteran had weakened movement or any other type of functional loss that would impact his range of motion.  He complained of instability at the October 2019 examination, but objective testing for each ankle was negative.  In other words, even when taking his functional loss due to pain into consideration, there is no evidence that his range of motion would be so affected so as to be reduced to a marked level of impairment in either ankle.  DeLuca, supra.  Accordingly, the Board continues the 10 percent rating that is currently assigned.  

The record does not show ankylosis, malunion of the os calcis or astragalus, or that he has had an astragalectomy, therefore DCs 5270, 5272 through 5274 are not for application.

7. The claim of entitlement to an initial rating higher than 10 percent for right hip impairment (limitation of abduction or rotation) is denied.

8. The claim of entitlement to an initial compensable rating for right hip limitation of flexion is denied.

9. A 10 percent initial rating for right hip limitation of extension is granted, effective May 1, 2012.

The Veteran’s right hip strain is currently rated 10 percent disabling for limited abduction or rotation under DC 5253, which pertains to impairment of the thigh.  38 C.F.R. § 4.71a.  Under DC 5253, a 10 percent rating is assigned for the inability to cross the legs or for external rotation limited to 15 degrees.  A 20 percent rating is assigned for abduction limited to 10 degrees.  Id.

He also has separate noncompensable ratings for limited extension and limited flexion, under DCs 5251 and 5252, respectively.  Under DC 5251, a 10 percent rating is assigned for extension limited to 5 degrees.  Id.  Under DC 5252, a 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent is assigned for flexion limited to 30 degrees; 30 percent is assigned for flexion limited to 20 degrees; and, 40 percent is assigned for flexion limited to 10 degrees. Id.

The Board notes that the diagnostic criteria pertaining to DCs 5251, 5252, and 5253 were not part of the recent amendments to 38 C.F.R. § 4.71a.  See generally 85 Fed. Reg. 76453 (Nov. 30, 2020).

Normal flexion of the hip is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II.  

In regard to higher than 10 percent under DC 5253, the record shows he was granted this rating due to his painful motion in the hip under 38 C.F.R. § 4.59.  At the February 2012 VA examination, his abduction was not lost beyond 10 degrees.  At the October 2019 VA examination, he had full abduction.  These results do not correspond with a higher rating for limited abduction.  

The October 2019 VA examiner opined that the Veteran’s pain would significantly limit function after repeated use over time and during flares, resulting in a loss of 5 degrees abduction under those circumstances.  He did not note any additional functional loss (such as weakened movement or fatiguability), but did indicate there was pain on weightbearing.  The Board considered this evidence of functional loss but does not find that it warrants a higher rating.  DeLuca, supra.  The record does not show that his abduction has ever been reduced to 10 degrees or less, which is what is required for the next higher rating. 38 C.F.R. § 4.71a, DC 5253.  Indeed, the examiner opined his abduction would only be limited to 40 degrees during flares or after repetitive use, which well-exceeds the criteria for the next rating.  There are no other records addressing right hip abduction.  Accordingly, based on this evidence, a rating higher than 10 percent under DC 5253 must be denied.

The Board does not find that a higher rating is warranted under DC 5252.  The Veteran’s flexion in February 2012 was full; in October 2019, it was reduced to 110 degrees.  This evidence does not correspond to a compensable rating.  The Board considered whether his functional loss warranted a higher rating, but the record does not show that his functional loss has reduced his flexion to 45 degrees or less, which is required for a compensable rating under DC 5252.  Id., DC 5252.  The October 2019 VA examiner opined that the Veteran’s functional loss would result in loss of range of motion, but only to 90 degrees of flexion, which exceeds the criteria for a 10 percent.  Id.; DeLuca, supra.

The Board notes that the October 2019 VA examination shows he had painful motion in flexion and external rotation, and that the February 2012 VA examination showed pain in flexion and extension.  The Board considered whether a compensable rating for painful flexion was warranted, but finds that the minimum rating for the joint has already been awarded on the basis of pain.  38 C.F.R. § 4.59.  His pain has not caused his flexion to be so reduced so as to result in 45 degrees or less.  Accordingly, a higher rating under DC 5252 is not warranted.

After review of the record, and in resolving all doubt in the Veteran’s favor, a 10 percent initial rating is warranted for extension limited to 5 degrees.  38 C.F.R. § 4.71a, DC 5251.  At the October 2019 VA examination, he was noted to have 30 degrees extension of the right hip, which is full (according to the range printed on the examination report).  However, at the February 2012 VA examination, the VA examiner checked the box on the examination form showing that the Veteran’s extension stopped at 5 degrees, which meets the criteria for a 10 percent rating.  Id.  The examiner noted his extension was 5 or more degrees after three repetitions, which the Board notes is not a clear response as to whether his range exceeded 5 degrees at that point, and which the Board interprets in the most advantageous light.  Accordingly, as the record shows his extension was limited to 5 degrees at the February 2012 VA examination, his initial rating must be 10 percent under DC 5251.  This is the highest rating available under this diagnostic code.   

The record does not show impairment of the femur, flail joint impairment, or ankylosis, therefore DCs 5250 and 5254, 5255 are not for application.

10. The claim of entitlement to an initial rating higher than 10 percent for right elbow limitation of flexion is denied.

11. A 20 percent rating, but no higher, for right elbow limitation of pronation is granted, effective October 13, 2019, but no earlier.

The Veteran’s right elbow strain is currently rated 10 percent disabling under DC 5206, which pertains to limitation of flexion, and noncompensably under DC 5213, which pertains to limitation of pronation or supination.  38 C.F.R. § 4.71a.

Under DC 5206, flexion limited to 110 degrees warrants a 0 percent rating.  Flexion to 100 degrees warrants a 10 percent rating.  Flexion to 90 degrees warrants a 20 percent rating.  Flexion to 70 degrees in the major extremity warrants a 30 percent rating.  Flexion to 55 degrees in the major extremity warrants a 40 percent rating.  Flexion to 45 degrees in the major extremity warrants a 50 percent rating.  38 C.F.R. § 4.71a, DC 5206.  Full flexion is to 145 degrees.  38 C.F.R. § 4.71a, Plate I.

The Veteran’s right elbow is his major extremity.

Under DC 5213, limited pronation where the motion is lost beyond the last quarter of the arc warrants a 20 percent rating, and where the motion is lost beyond the middle of the arc warrants a 30 percent rating.   A 10 percent rating to be assigned when supination is reduced to 30 degrees or less.  38 C.F.R. § 4.71a, DC 5213.

Full pronation is to 80 degrees.  Full supination is to 85 degrees.  38 C.F.R. § 4.71a, Plate I.

The Board notes that the diagnostic criteria pertaining to DCs 5206 and 5213 were not part of the recent amendments to 38 C.F.R. § 4.71a.  See generally 85 Fed. Reg. 76453 (Nov. 30, 2020).

Turning to the evidence, the Board does not find that a higher rating is warranted for limitation of flexion of the left elbow.  He had full flexion at the February 2012 and October 2019 VA examinations, which corresponds to a noncompensable rating.  During the February 2012 VA examination, he was found to have painful flexion at 135 degrees, which accounts for his 10 percent rating.  38 C.F.R. § 4.59.  

At the October 2019 VA examination, he complained of dull pain over the right elbow, and having difficulty lifting heavy objects due to pain.  The examiner opined that his flexion, while full on examination, would be reduced to 130 degrees during flares and after repetitive use due to pain.  The Board considered whether this evidence of functional loss warranted a higher rating, but finds that this estimate of additional loss also corresponds to a noncompensable rating.  DeLuca, supra.  The Board acknowledges his complaints of pain and his additional loss of motion during flares and after repetitive use, but does not find that the evidence has ever shown that his right elbow flexion has been reduced to 90 degrees or less, which is required for the next higher rating.  Indeed, the examiner opined that his additional functional loss would only result in limitation to 130 degrees, which is not compensable.

Accordingly, a rating higher than 10 percent for limited flexion of the right elbow is not warranted.

In regard to limited pronation and supination, the February 2012 VA examination does not show supination limited to 30 degrees or less, or that motion was lost beyond the last quarter arc of pronation.  However, at the October 13, 2019, VA examination, the VA examiner opined that pain would reduce pronation to 70 degrees.  Although this is not beyond the last quarter arc, the Board notes the diagnostic criteria also requires that “the hand does not approach full pronation.”  There is no definition of where in the range the hand would be considered close enough to full pronation to be considered “approaching.”  In resolving doubt in his favor, the Board finds that he meets the criteria for a 20 percent rating for limited pronation.  A higher rating is not warranted because his pronation is not lost nor functionally lost beyond the middle of the arc.  38 C.F.R. § 4.71a, DC 5213.

The record shows he has had full extension without any loss during flares or after repetitive use.  The record does not show ankylosis, impairment of the flail joint, or impairment of the radius and ulna. Therefore, DCs 5205, 5207, 5208, 5209, 5210, 5211 or 5212 are not for application.  

12. The claim of entitlement to an initial rating higher than 20 percent for right shoulder strain with degenerative changes starting from May 1, 2012, is denied.  A 30 percent rating, but no higher, is granted effective October 13, 2019.

13. The claim of entitlement to an initial rating higher than 20 percent for left shoulder strain with degenerative changes is denied.

The Veteran’s right and left shoulders are currently each rated as 20 percent disabling under DC 5201.  38 C.F.R. § 4.71a.  

Under DC 5201, limitation of motion of the arm, a 20 percent rating is assigned when the arm can only be lifted to shoulder level, for both the major and minor side.  Motion limited to midway between the side and shoulder level on the major side warrants a 30 percent rating, but on the minor side warrants a 20 percent rating.  Motion limited to 25 degrees from the side on the major side warrants a 40 percent rating, but on the minor side warrants a 30 percent rating.  Id., DC 5201.  Shoulder level is 90 degrees.  Id., Plate I.

As mentioned, the Veteran’s major extremity is his right, therefore his right shoulder is rated as his major side, and his left shoulder is rated as his minor side.  Id.  

As discussed above, the regulations pertaining to rating the shoulders were amended, effective February 7, 2021.  See 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271).  These amendments provide specific ranges of motion, in degrees, required to meet the diagnostic criteria.  These amendments are not applicable any earlier than their effective date.  As above, there is no evidence dated after February 7, 2021; therefore, these amendments are not for application.

Turning to the evidence, at the February 2012 VA examination, the Veteran’s flexion and abduction of the right shoulder were both full, although with pain starting at 100 degrees.  His left shoulder flexion and abduction were both full, but with pain starting at 140 degrees.  A full range of motion corresponds to a noncompensable rating.  However, he was provided his 20 percent rating on account of his painful motion.  38 C.F.R. § 4.59.  The examination notes that his only functional loss was as a result of painful motion, and that his muscle strength was otherwise normal.  The Board finds this evidence does not warrant a higher rating for either shoulder.  Even taking into account his functional loss due to pain, he has not been shown to have reduced right shoulder flexion or abduction to midway between the side and shoulder level, or in the left shoulder to 25 degrees from the side, which is required for higher ratings for the shoulders.  38 C.F.R. § 4.71a, DC 5201; Deluca, supra.

The record shows the Veteran has had treatment and physical therapy for his shoulders over the years, but none of those records contain information that can be applied to the rating schedule.  At the October 13, 2019, VA examination, his right and left shoulder flexion were both to 100 degrees, and abduction were both to 90 degrees, which corresponds to his current 20 percent ratings.  The Veteran had pain on flexion and abduction.  The examiner opined that pain and fatigue would significantly impact function after repetitive use over time and during flares, and estimated that flexion would be reduced to 60 degrees, and abduction to 50 degrees, under these circumstances.  The examiner noted that Veteran would have difficulty performing tasks that required heavy or repetitive lifting.

The Board notes that the VA examiner’s estimate of the Veteran’s abduction during flares and after repetitive use over time is essentially “midway” between side and shoulder level, and finds that this evidence of functional loss sufficient to meet the criteria for a higher rating for the right shoulder, which is the major extremity.  Deluca, supra.  Accordingly, a 30 percent rating is warranted for the right shoulder, effective from the date of the October 13, 2019, VA examination.  38 C.F.R. § 3.400.  The record does not show that his function in the right shoulder has ever been so affected such that it could not abduct or flex beyond 25 degrees from the side, and the Veteran has not so alleged.  Therefore, the next higher rating is not warranted for the right shoulder. 

As far as the left shoulder, a higher rating is not warranted.  Although the left shoulder has the same amount of loss as the right, and can only abduct to midway between the side and shoulder level during flares and after use, this level of loss corresponds to a 20 percent rating in the minor extremity.  The record does not show that his pain or fatigue has ever caused his left shoulder abduction or flexion to be reduced to 25 degrees from the side, and he has not so alleged.  This level of loss is required for the next higher rating for the minor extremity.  38 C.F.R. § 4.71a, DC 5201; Deluca, supra.  The Board finds that the Veteran’s 20 percent rating for the left shoulder must be continued based upon the evidence of record.

The record does not show ankylosis, impairment of the humerus, or impairment of the scapula or clavicle.  Therefore, DCs 5200, 5202, or 5203 are not for application.

14. The claim of entitlement to an initial rating higher than 10 percent for right knee patellofemoral syndrome with degenerative changes is denied.

15. The claim of entitlement to an initial rating higher than 10 percent for left knee status post ACL repair with degenerative changes is denied. 

The Veteran’s right and left knees are currently each rated as 10 percent disabling under DC 5003-5260, which pertains to limited motion resulting from arthritis.  38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning diagnostic criteria to unlisted disabilities, including the use of hyphenated ratings).  

Under DC 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  Limited flexion of the knee is rated under DC 5260, which assigns a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees.  Id., DC 5260.  Normal range of motion of the knee is from 0 to 140 degrees.  Id., Plate II.  

The regulations pertaining to rating arthritis under DC 5003 were amended, effective February 7, 2021.  See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5271).  These amendments are not applicable any earlier than their effective date.  As above, there is no evidence dated after February 7, 2021; therefore, these amendments are not for application.

The record shows the Veteran had full flexion and extension in both the right and left knees at the February 2012 VA examination, but that he had painful flexion starting at 130 degrees.  Full flexion corresponds with a noncompensable rating; however, his painful motion was the basis for his 10 percent rating.  38 C.F.R. § 4.59.  At the October 2019 VA examination, his right and left knee flexion was 120 degrees, which also corresponds with a noncompensable rating.  That examiner opined that the Veteran would have additional loss of flexion, to 90 degrees, during flares and after repetitive use over time, due to pain.  The Veteran was noted to have swelling in the knees after prolonged use.  The Board considered whether this evidence of additional functional loss warranted a higher rating, but does not find that the evidence has ever shown his flexion in either knee to be reduced to 30 degrees or to an equivalent level of loss, and he has not so alleged.  Deluca, supra.  Accordingly, neither the right nor the left knee ratings can be raised under DC 5260.

The Board notes that the Veteran has painful extension, but that he has already been awarded the minimum for each knee under DC 5260.  38 C.F.R. § 4.59.  His extension has always been full, and he has not alleged that it is ever reduced.  Accordingly, a rating under DC 5261 is not warranted.

The record does not show recurrent subluxation or lateral instability, and the Veteran has not alleged he has these symptoms.  Therefore DC 5257 is not for application.  The record does not show dislocated or removed semilunar cartilage, or that he has episodes of locking, therefore DCs 5258 and 5259 are not for application.  The record does not show impairment of the tibia and fibular or genu recurvatum, therefore DCs 5262 and 5263 are not for application. 

16. The claim of entitlement to an initial rating higher than 10 percent for thoracolumbar strain with degenerative changes starting from May 1, 2012, is denied.  A 40 percent rating, but no higher, is granted effective February 23, 2016.

The Veteran’s low back is currently initially rated 10 percent disabling prior to October 13, 2019, and 20 percent disabling thereafter, under DC 5242, which pertains to degenerative arthritis of the spine.  See 38 C.F.R. § 4.71a.  Disabilities rated under DC 5242 are rated using the General Rating Formula for Diseases and Injuries of the Spine, which provides for a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned due to unfavorable ankylosis of the entire spine.  Id.

A footnote (1) to the General Rating Formula indicates that any associated neurological disabilities are to be separately rated under the appropriate diagnostic code.  Id.  Indeed, the Veteran has been awarded separate ratings for right and left lower extremity radiculopathy, discussed below.  These are the only neurological abnormalities diagnosed.

After a review of the evidence, the Board finds that a 40 percent rating is warranted starting from February 23, 2016, the date of a private treatment appointment wherein the Veteran’s lumbar flexion was reduced to 20 degrees.  This is his worst flexion recorded, and the earliest that he meets the criteria for a 40 percent rating.  38 C.F.R. § 4.71a.  The Board notes that a higher rating is not warranted unless the evidence shows ankylosis, which is not shown.  

Prior to February 23, 2016, the Veteran’s flexion was full, with pain functionally reducing it to 80 degrees.  This does not meet the criteria for a rating higher than 10 percent.  Id.; Deluca, supra.    

17. A 20 percent for right lower extremity radiculopathy is granted effective May 1, 2012.

18. A 20 percent for left lower extremity radiculopathy is granted effective May 1, 2012.

The Veteran’s right lower extremity radiculopathy is currently rated 20 percent disabling effective from February 23, 2016.  

His radiculopathy is rated under DC 8520, which pertains to complete and incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  Mild incomplete paralysis warrants a 10 percent rating; moderate warrants a 20 percent rating; moderately severe warrants a 40 percent rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating.  Complete paralysis warrants an 80 percent rating, and is shown when the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexions of the knee is weakened or (very rarely) lost.  Id., DC 8520.  

A note prior to the rating criteria pertaining to diseases of the peripheral nerves, which contains DC 8520, explains that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree.  Id.  

Disability ratings with respect to neurological conditions are ordinarily rated in proportion to the impairment of motor, sensory or mental function.  38 C.F.R. § 4.120.  In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  Id.  Special consideration is given to complete or partial loss of use of one or more extremities.  38 C.F.R. § 4.124a.

The record shows the Veteran was diagnosed with lumbar radiculopathy while still in service, in December 2011.  His symptoms included reduced reflexes in the knees (to 1+), and pain and tingling into the feet.  These symptoms correspond to moderate symptoms of radiculopathy.  A higher rating is not warranted as the evidence does not show moderately severe symptoms.  Examination of motor function was normal, and he was not shown to have muscle weakness or atrophy, which are symptoms that would warrant a higher rating.  Rather, aside from reduced reflexes, his symptoms were wholly sensory.  38 C.F.R. § 4.124a.

The Board notes that the radiculopathy was not diagnosed at the February 2012 VA examination, which was conducted prior to separation.  However, the record is in equipoise as to whether it was present prior to separation, and the Board sees no reason to place more weight on the VA examination when there is no indication that the December 2011 record is incorrect or unreliable.  Aside from the February 2012 VA examination, the record does not contain neurological testing or complaints again until later in the appeal period.  The Board resolves doubt in the Veteran’s favor.  

19. The claim of entitlement to a TDIU is mooted.

The Veteran has appealed the denial of a TDIU.  The Board notes that the claim for a TDIU was received in September 2020, and the Veteran indicated his basis for TDIU was all of his service-connected disabilities.  Indeed, the record does not show that a single disability has been identified by the Veteran as the cause of his unemployability.  The Board notes that with the above decision, his total combined disability rating for all of his disabilities amounts to a 100 percent effective from May 1, 2012, the day after his separation.  The Board finds that this moots his TDIU claim, as it is an essential grant of what that claim asked for, that is, a 100 percent (total) rating on account of his service-connected disabilities.  His service-connected disabilities now combine to be 100 percent for the entire period on appeal.  

 

REASONS FOR REMAND

1. The claim of entitlement to service connection for an eye disability is remanded.

The Veteran is claiming service connection for an eye disability.  He has been diagnosed with dry eye and photophobia, which have been attributed to in-service photorefractive keratectomy (PRK), which is a surgery to correct refractive error.  The AOJ has denied service connection on that basis, noting that the usual effects of medical and surgical treatment that occurred during service are not considered to be service connected.  However, under 38 C.F.R. § 3.306(b)(1), those usual effects may be service connected if aggravated by service.  Service connection via aggravation of a disability during service requires a permanent increase in severity during service that is not due to the normal progression of the disability.  This has not been addressed by the VA examiner.

Further, during the VA examination, he complained of having eye pain, blurred vision, and floaters.  It is not clear what diagnoses these symptoms are related to, and therefore unclear whether the March 2012 VA examination is complete.  The Board notes he has attributed having blurred vision to TBI, but the March 2012 VA eye examination shows uncorrected vision is 20/40 or better for each eye near and far.

Finally, the record shows the Veteran has been diagnosed with bilateral squamous blepharitis, which is a more recent diagnosis.  The record also suggests glaucoma, which should be clarified.  An examination and opinion on whether there is a relationship to service should be obtained

2. The claim of entitlement to an initial rating higher than 10 percent prior to October 13, 2019, and higher than 20 percent thereafter, for cervical strain with degenerative disc disease is remanded.

Review of the record suggests that the Veteran’s cervical spine disability has increased in severity since his October 2019 VA examination.  The Veteran’s cervical range of motion was measured in March and June 2020, with results that were lower than when measured at the last examination.  

Further, the Veteran was diagnosed with cervical radiculopathy at the October 2019 VA examination.  However, review of the record suggests that he has had cervical radiculopathy since at least December 2011, which was during his active service, and shows that it was listed as a current diagnosis as early as March 2016.  This evidence was not addressed by the VA examiner, which leads the Board to conclude that the October 2019 VA examiner did not adequately review the record.  

The Board observes that his neck is rated under DC 5243, which pertains to IVDS (intervertebral disc syndrome), and which has a separate rating schedule that may be used that does not include separately rating neurological abnormalities.  However, the General Rating Formula for the Spine has been applied here, as per the May 2013 and September 2020 rating decisions, which requires these neurological abnormalities that are related to the neck to be separately service connected.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  On remand, the VA examiner will be asked to opine on when the Veteran’s cervical radiculopathy incepted. 

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records, along with any updated records of outside treatment scanned into separate folders.

2. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any eye disability is related to service.  

Specifically, the examiner is asked whether any diagnoses or symptoms are related to his service-connected traumatic brain injury or to his in-service PRK.  

If related to the PRK, the examiner is asked whether they are “usual effects” of the PRK, that is, if these diagnoses would be expected to occur following PRK.  If expected to occur following PRK, the examiner is asked whether there was aggravation during service?  Aggravation is considered to have happened when there is a permanent increase in severity during service that is not attributed to the natural progress of the disability.  If any of his current disabilities are not considered a “usual effect” of PRK, then the examiner is asked whether it is as likely as not (50/50 probability or greater) that the diagnosis or symptom was caused by the PRK.

The examiner is asked to conduct a thorough examination and to provide a list of all diagnoses.  The Veteran has been diagnosed with dry eye, photophobia, and squamous blepharitis, and a November 2020 medical record suggests glaucoma.  He has also complained of pain, blurred vision, and floaters in his vision, which have not yet been attributed to a diagnosis.

All opinions must be accompanied with explanation.   

3. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on the current severity of his cervical spine disability.  A thorough examination is to be completed, along with all necessary diagnostic tests.

The examiner is asked to conduct range of motion measurements, and to elicit from the Veteran a detailed explanation of his symptoms in general, and during flares and after repetitive use over time.  The examiner is asked to provide an opinion on whether the Veteran’s function is impacted by pain or any other factor during flares and after repetitive use over time, and to provide an estimate of loss of range of motion under such circumstances.  If unable to provide an estimate, explain why the Veteran’s statements were not helpful in that regard.  

The examiner is asked to conduct a complete neurological examination, and to provide an opinion on when the Veteran’s cervical radiculopathy incepted.  The examiner is directed to a December 2011 STR that shows bilateral upper extremity radiculitis, and a March 2016 private medical record that shows cervical radiculopathy as a current diagnosis.

All opinions must be accompanied by explanation.  

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Gibson

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.