Citation Nr: 21015808 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-26 160 DATE: March 18, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to an initial rating in excess of 40 percent for post-concussion syndrome with cognitive disorder and adjustment disorder, with anxiety and insomnia is denied. Entitlement to an initial rating in excess of 30 percent for tension headaches associated with post-concussion syndrome is denied. Entitlement to an initial rating of 10 percent, but no higher, prior to March 28, 2018 for residuals of a right foot stress fracture is granted. Entitlement to a rating in excess of 10 percent from March 28, 2018 for residuals of a right foot stress fracture is denied. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to an initial compensable rating prior to June 26, 2019 for right knee chondromalacia is remanded. Entitlement to a rating in excess of 10 percent from June 26, 2019 for right knee chondromalacia is remanded. Entitlement to an initial compensable rating prior to February 7, 2017 for left knee chondromalacia is remanded. Entitlement to a rating in excess of 10 percent from February 7, 2017 for left knee chondromalacia is remanded. FINDINGS OF FACT 1. The Veteran does not have a left shoulder disability. 2. Throughout the appellate period, the Veteran’s post-concussion syndrome has been manifested by no greater than Level 2 impairment of any cognitive function. 3. The Veteran’s headaches are not manifested by very frequent prostrating and prolonged attacks productive of severe economic inadaptability. 4. During the entire period on appeal, the Veteran’s residuals of a right foot stress fracture disability manifested by pain on use and on weight bearing and is productive of no more than a moderate impairment of the right foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for an initial disability rating in excess of 40 percent for post-concussion syndrome have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2019). 3. The criteria for entitlement to an initial rating greater than 30 percent for a tension headache disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.124a, Diagnostic Code (DC) 8199-8100 (2019). 4. Prior to March 28, 2018, the criteria for an initial 10 percent rating, but no higher, for the Veteran’s right foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5283 (2019). 5. The criteria for a rating in excess of 10 percent for residuals of a right foot stress fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5283 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 2005 to March 2010 including service in Iraq. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded these issues to the RO for additional development. The Veteran’s claims of entitlement to service connection for a back disability and a right ankle disability were granted as part of a July 2020 rating decision and are no longer before the Board for adjudication. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left shoulder disability The Veteran filed a claim for entitlement to service connection for a left shoulder disability and dislocation in March 2010. Service treatment records (STRs) are associated with the claims file and do not reflect any treatment for or complaints of left shoulder pain. On his December 2009 report of medical history form, the Veteran reported right shoulder pain and dislocation, he did not mention his left shoulder. The corresponding examination determined that his upper extremities were normal. The Veteran attended a VA examination in March 2010. He told the examiner about injuries in service to his right shoulder. Examination revealed no detectable alteration in form or function of the right and left shoulders, no sign of edema, effusion, weakness, tenderness, redness, heat or abnormal movement. There was no instability, deformity, guarding of movements, malalignment or drainage, and no fixed position was identified. There was normal strength and normal range of motion. The examiner determined that pain, weakness, lack of endurance, fatigue or incoordination did not impact further on the range of motion after repetitive use. Multiple x-ray views of the left shoulder did not reveal any fractures or other significant bone, joint, or soft tissue abnormality. September 2010 VA treatment records reflect that the Veteran reported the “feeling of instability” in his left shoulder. The Veteran sought treatment for right shoulder pain and dislocation in October 2010. He did not mention any left shoulder problems. See October 2010 VA treatment records. October 2010 diagnostic testing of the left shoulder was unremarkable, without joint space narrowing or sclerosis. There was adequate interval between the humeral head and acromion. The Veteran attended a VA examination in June 2019. He told the examiner that he did not recall a left shoulder injury in service and reported no chronic left shoulder symptoms. He stated that when the weather was cold his whole body felt stiff. No flare-ups were reported, and examination revealed normal range of motion and normal muscle strength. No instability, dislocation or labral pathology was suspected. There was no evidence of pain with active or passive motion, and no evidence of pain with weight-bearing. The examiner concluded that the Veteran did not have a left shoulder disability. The Veteran attended another VA examination for his shoulders in August 2019. He did not report any complaints regarding the left shoulder. No flare-ups were reported, and examination revealed normal range of motion and normal muscle strength. No instability, dislocation or labral pathology was suspected. There was no evidence of pain with active or passive motion, and no evidence of pain with weight-bearing. The examiner determined that there was no left shoulder disability. The Veteran sought treatment for right shoulder pain in December 2019. He did not report any symptoms in his left shoulder. The Board concludes that the Veteran does not have a left shoulder disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McKinney v. McDonald, 28 Vet. App. 15 (2016); 38 C.F.R. § 3.303 (a), (d). Under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Herein, even if the Board considered the Veteran’s sole reported instability sensation from October 2010, there is no evidence of functional limitation. VA treatment records have been associated with the claims file. The only recorded instance of left shoulder symptomology occurred in October 2010. Since that time, the Veteran has not reported any left shoulder pain or instability and has received no treatment for such. After consideration of all the evidence of record the Board finds that the weight of the evidence against the Veteran's claim for service connection for a left shoulder disability. Although the Veteran filed a claim for entitlement to service connection for a left shoulder condition, he explicitly told the June 2019 examiner that he didn’t recall a left shoulder injury in service and reported no chronic left shoulder symptoms. Based on the evidence the record, the Veteran does not have a left shoulder disability. The Board finds that the medical evidence is more probative and credible than the lay observation of record. The VA treatment records are absent indications of a diagnosis of a left shoulder disability. Further, there is no evidence that the Veteran's reported any left shoulder symptoms that interfere with functioning as evidence by the treatment records. Thus, the more probative evidence of record indicates that the Veteran does not have a current left shoulder disability. As such, the Board finds that service connection for a left shoulder disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. 2. Entitlement to an initial rating in excess of 40 percent for post-concussion syndrome with cognitive disorder and adjustment disorder, with anxiety and insomnia The Veteran contends that he is entitled to a higher rating for his post-concussion syndrome. The Veteran’s post-concussion syndrome is rated as 40 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8045 which provides evaluation for three main areas of dysfunction that may result from traumatic brain injuries (TBI) and have profound effects on functioning: Cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. This Diagnostic Code states the following: 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. Evaluate cognitive impairment 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 traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, 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.” 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 traumatic brain injury. 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. 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. Regarding 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 traumatic brain injury related to cognitive impairment and subjective symptoms. They are: memory/attention/concentration/executive function; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. The table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than “total,” since any level of impaired consciousness would be totally disabling. 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. 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 comorbid 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. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): “Instrumental activities of daily living” refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one’s own medications, and using a telephone. These activities are distinguished from “Activities of daily living,” which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. In addition to the rating under DC 8045, the Veteran is separately rated under DC 8100 for headaches (rated as 30 percent disabling), DC 6275 for partial loss of smell (rated as noncompensable), DC 6276 for partial loss of taste (rated as noncompensable), and DC 6260 for tinnitus (rated as 10 percent disabling). The Veteran underwent a VA contract examination in March 2010. He reported headaches (for which he is separately service connected), concentration and attention problems, problems with reading, difficulty understanding directions, fatigue, hypersensitivity to sound, heat intolerance, anxiety, trouble sleeping, and general feeling of discomfort. He reported that his symptoms were stable, and he denied any treatment. He reported that he did not experience any functional impairment from his condition. He reported working as a bartender. Examination revealed that the Veteran was alert and oriented to person, place, time and space. His coordination was within normal limits. The examiner determined that the Veteran had post concussive syndrome, with subjective factors of short-term memory difficulties and headaches, and objective factors of concentration problems. He determined that the Veteran’s head injury had stabilized. September 2010 VA treatment reflects that the Veteran reported more trouble concentrating and following conversations. He reported vision problems, with trouble seeing into the distance. The Veteran also stated that he continued to have tinnitus, which made it difficult to hear people talking at the same time or with background noise. He also reported poor concentration, decrease in taste and smell, fatigue, slower thinking, and anxiety. During May 2017 VA treatment, the Veteran reported memory issues, trouble concentrating, low energy, and difficulty falling asleep and staying asleep. He did not report any vision issues. He reported using a GPS to help him navigate. He denied any trouble remembering to take medications but did report difficulty remembering appointments. The Veteran denied receiving any mental health treatment. He reported difficulty in school because of his memory issues but denied any accommodations or difficulty with reading or math. Treatment revealed that his vision and hearing were adequate for testing and he understood instructions without difficulty. He was fully oriented and able to spontaneously recall the current president. He had mild self-reported anxiety. Following an examination, the treating physician determined that it was “possible that the Veteran is experiencing cognitive deficits but the present results do not allow for such comment,” and “despite the inconsistencies in effort, the Veteran did display cognitive strengths in some aspects of attention and verbal fluency. The Veteran indicated significant psychosocial stressors related to recent deaths of family and friends.” The treating physician ultimately concluded that the Veteran’s ongoing cognitive complaints were more likely due to other mitigating factors rather than residuals from TBI’s. The Veteran attended a VA examination for his PTSD in March 2019. He reported memory trouble, explaining that he had a “decent” memory but not when he was nervous. He told the examiner that he had a number of TBIs, but none of them resulted in residual cognitive difficulties. The examiner determined that the Veteran had PTSD, separated from his TBIs. Following an examination and review of the claims file, the examiner concluded that it was likely that the Veteran had “no cognitive residuals” from his TBIs. He also determined that it was likely that “no aspect of the Veteran’s occupational and social impairment is caused by his history of mild TBI.” Mild memory loss, anxiety, suspiciousness, panic attacks, flattened affect, impaired judgment, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships and impair impulse control were all attributed to his PTSD. The Veteran underwent a VA contract examination in September 2019. He had no complaints of impairment of memory, attention, concentration or executive functions. His judgment was normal, as well as his motor activity and visual spatial orientation. The Veteran was always oriented to person, time, place, and situation/ His social interactions were routinely appropriate. Aside from headaches and an alteration in his sense of smell and taste, which are separately service connected, the Veteran did not report any subjective symptoms and there were no neurobehavioral effects. He was able to communicate by spoken and written language and his consciousness was normal. Neuropsychological testing revealed a mildly abnormal neuropsychological profile. The examiner reported that the Veteran’s responses to TBI facets 1, 3, and 8 were no complaints, routinely appropriate, and no effects based on the March 2019 VA examination with neuropsychological testing and opinion. The Veteran’s response to facet 7 was no subjective symptoms, nothing that his headaches and tinnitus were separate service-connected conditions and his insomnia was more likely related to mental health condition. The Board finds the March 2019 and September 2019 VA examinations to be highly probative. They are the most detailed and thorough examinations of record and explain the etiology of the Veteran’s mental and cognitive health symptoms. The examinations, taken cumulatively, clearly attribute many mental health symptoms to the Veteran’s PTSD, which has not been associated with his post-concussive syndrome. The Board notes that although the Veteran is not presently service-connected for PTSD, he is able to file a claim for entitlement to service connection for that disorder. Under 38 C.F.R. § 4.124a, Diagnostic Code 8045, any evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of TBI are evaluated separately. Here, a higher 70 percent rating would require a “3” to be assigned as the highest level of any one facet, or a “total” evaluation to be assigned for one or more facets. As will be detailed below, the highest level of severity for any facet during the appeal is “2” under the criteria; therefore, a rating in excess of 40 percent is not warranted. To facilitate understanding, the Board will go through each of the 10 facets of cognitive impairment. Memory, Attention, Concentration, Executive Function, Judgment, Social Interaction As discussed above, the Veteran has evidenced mild to moderate memory loss and difficulty concentrating. However, there is no probative evidence associated with the record indicating the Veteran’s memory loss and concentration issues are more than mildly impaired. This is supported by the Veteran’s success in college and ability to attend fulltime without any accommodations. Moreover, the record does not indicate impairment associated with executive function. The Board also finds the March 2019 and September 2019 VA examinations to be highly probative regarding the state of the Veteran’s TBI residuals. The examinations determined that the Veteran’s TBI residuals likely had no impact on his occupational and social functioning. The March 2019 examination also attributed the Veteran’s memory loss and trouble concentrating with his PTSD and not with his TBI’s. As such, the Board finds that the Veteran’s symptoms do not indicate greater than a two for this facet. Orientation The VA examinations note the Veteran was always oriented to person, time, place, and situation. There is no evidence indicating otherwise. Therefore, a zero is assigned for this facet. Motor Activity The Veteran’s motor activity has been normal throughout the appeal. Therefore, a zero is assigned for this facet. Visual Spatial Orientation This category contemplates getting lost, not being able to follow directions, and difficulty using assistive devices such as GPS. On VA examinations in September 2019, the Veteran was noted to have normal visual spatial orientation. Therefore, a zero is assigned for this facet. Neurobehavioral Effects Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are more likely to have a more serious impact on workplace interaction and social interaction than some other effects. While the Veteran has reported several neurobehavioral effects, the March 2019 and September 2019 VA examiners explained that these symptoms were due to his PTSD and not due to his TBI’s. This is also supported by the May 2017 VA treatment records. Communication The Veteran’s communication ability has been normal throughout the appeal. Therefore, a zero is assigned for this facet. Consciousness The Veteran has remained conscious throughout the appeal. Therefore, a total rating is not assignable for this facet. Subjective Symptoms Subjective symptoms include tinnitus, headaches, and alteration in taste and smell. See the September 2019 VA examination report. As mentioned above, the Veteran is separately service connected for these disabilities. At no point during the appeal has the evidence indicated that a rating in excess of 40 percent is warranted for the Veteran’s TBI under Diagnostic Code 8045. Using the table to evaluate cognitive impairment, the Veteran’s residuals have not been rated as any more than at a level “2” impairment at any point during the appeal. Using the table to evaluate subjective symptoms, the Veteran’s TBI residuals have not been characterized as any more severe than a level “2.” An assigned value of “2” yields a 40 percent evaluation, and only one evaluation may be assigned for all of the applicable facets under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Therefore, an increased rating is not warranted, and the 40 percent evaluation currently assigned for the Veteran’s TBI is most appropriate for the entire period under consideration. 3. Entitlement to an initial rating in excess of 30 percent for tension headaches associated with post-concussion syndrome The Veteran contends that he is entitled to an initial higher rating for his tension headache disability. The Veteran’s headache disability is rated as 30 percent disabling under DC 8100. He claims that the current rating does not accurately reflect the true nature and degree of his disability. DC 8100 provides ratings for migraine headaches. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100. The Veteran attended a VA examination in March 2010. He reported headaches that prevented him from concentrating and caused pain in his temples. During a headache, he stated that he was able to take care of some household chores but was unable to go into work. He reported daily headaches, lasting about two hours in duration. The examiner diagnosed the Veteran with post concussive syndrome and tension headaches. September 2010 VA treatment records reveal that the Veteran reported bifrontal headaches that ranged from mild, dull and aching, to severe, sharp and shooting pain. He reported headaches three times a week and stated that he took Tylenol for relief. He stated that he worked through it and the headaches went away after a few hours. During May 2017 VA treatment, the Veteran reported headaches 2-3 times weekly, which he treated with Naproxen. He reported attending college fulltime. He denied any accommodations, and any difficulty with reading or math. January 2019 VA correspondence reflects that the Veteran was using vocational rehabilitation subsistence allowance to attend college. During a March 2019 PTSD VA examination, the Veteran reported that he was in school and “doing well.” He reported he last worked in roofing sales but left because of his knee problems and the travel requirement. The Veteran attended a VA examination in June 2019. He reported that his headache disability caused pressure and squeezing pain that radiated from his mid back to posterior lateral head about twice a week. He stated that the intensity varied from mild to severe, and usually lasted four hours. The Veteran stated that headaches and other conditions caused him to miss his college classes about three times a semester. Following an examination and review of the claims file, the examiner determined that the Veteran had characteristic prostrating attacks about once a month, but that the attacks were not productive of severe economic inadaptability. During a severe headache, the examiner determined that the Veteran’s ability to work would be impacted. The Board concludes that based on all the evidence of record that an increased rating greater than 30 percent is not warranted under DC 8100 for any period on appeal. The Veteran has reported frequent headaches that ranged in severity. The Board finds that the evidence does not indicate that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The June 2019 VA examiner found no evidence of prostrating attacks productive of severe economic inadaptability. The Board acknowledges the Veteran’s headaches are periodically characteristic of prostrating attacks, but there is no probative evidence that the attacks result in severe economic inadaptability. The record reflects that during the period on appeal, the Veteran has been attending college, fulltime, successfully. Prior to enrolling in college, the Veteran reported working in sales, and only leaving because of knee trouble. In total, it is clear from the context that the Veteran does not experience severe economic inadaptability because of his headaches. Moreover, no other DC is appropriately applied. The Board has considered alternative DCs relating to neurological conditions but finds that they are inapplicable in this case. See 38 C.F.R. § 4.124a. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating greater than 30 percent rating is not warranted for the Veteran’s headaches for any period on appeal. As explained in more detail above, the symptoms throughout the appeal period are essentially consistent. For this reason, staged ratings are not applicable. 4. Entitlement to a compensable rating prior to March 28, 2018 for residuals of a right foot stress fracture 5. Entitlement to a rating in excess of 10 percent from March 28, 2018 for residuals of a right foot stress fracture Prior to March 28, 2018, the Veteran was given a noncompensable rating for residuals of a right foot stress fracture under Diagnostic Code 5283. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, as it pertains to this appeal, these changes only affect Diagnostic Code 5269, which evaluates plantar fasciitis. Pursuant to Diagnostic Code 5283, a 10 percent rating is warranted for moderate impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A 20 percent rating is warranted for moderately severe impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A 30 percent rating is warranted for severe impairment associated with the malunion, or nonunion of the tarsal or metatarsal bones of the foot. A note following Diagnostic Code 5283 provides that a 40 percent rating will be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5283. The Veteran attended a VA examination in March 2010. He reported that he had right foot pain made worse by physical activity and alleviated by rest. He stated that he was unable to push a lawnmower because it aggravated his right foot pain. He reported that he played rugby and weight lifted for recreation. Examination revealed full range of motion and no indication of abnormal weightbearing on his feet. His posture and gait were normal, and he denied using any assistive devices. An x-ray was negative. October 2010 VA treatment records reflect that the Veteran reported bilateral foot pain. X-rays were negative and there was no evidence of any stress fractures. A medical note reflects possible Morton’s neuroma. The Veteran reported right foot pain during March 2018 VA treatment. The Veteran attended a VA examination in June 2019. He reported right foot pain across the mid foot and metatarsal. The Veteran told the examiner that his right foot pain limited his running. He denied flare-ups. The examiner noted that the Veteran had Morton’s neuroma. The right foot disability required the Veteran to wear soft sole shoes with no heel. The examiner determined that the Veteran’s right foot disability was moderate and chronically compromised weight bearing. After considering the medical findings and lay contentions of record, the Board finds the Veteran is entitled to a rating of 10 percent for a moderate foot disability for the entire period on appeal. The disability causes pain on use and on weight bearing and causes functional limitations such as disturbance of locomotion, and interference with standing. In addition, the Veteran indicated the pain from his right foot disability limits his ability to mow the lawn or run. Resolving reasonable doubt in the Veteran’s favor, the Board finds that an initial disability rating of 10 percent is warranted under Diagnostic Code 5283. The Board, however, finds that the functional limitations reported by the Veteran due to this disability do not more nearly approximate “moderately severe” or “severe” limitation to warrant a rating higher than 10 percent. The Veteran’s VA treatment records fail to reflect a moderately severe condition, as the Veteran has only periodically reported or received treatment for his right foot disability during the last decade and he has denied assistive devices. Accordingly, the Board finds that the Veteran’s symptoms are no more than moderate in severity, and a rating of 10 percent is appropriate. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. The Board has considered Diagnostic Code 5284; however, the evidence of record does not reflect that the Veteran has any other distinct manifestations that would warrant a separate rating under a different Diagnostic Code from those that are already being compensated. See 38 C.F.R. § 4.14. The Veteran’s disability is manifested by pain and functional limitation, which is contemplated in the 10 percent rating granted by this decision under Diagnostic Code 5283. There are no separate and distinct manifestations that would warrant assignment of separate ratings under additional Diagnostic Codes. Granting separate ratings under additional diagnostic codes for the same manifestation, specifically symptoms of pain, would constitute impermissible pyramiding. 38 C.F.R. § 4.14. In conclusion, resolving reasonable doubt in his favor, a rating of 10 percent, but no higher, is granted for the Veteran’s right foot disability for the entire period on appeal. REASONS FOR REMAND 6. Entitlement to service connection for a bilateral hip disability The Veteran contends he is entitled to service connection for a bilateral hip disability. Specifically, he contends that prolonged standing in the turret of the Humvee caused his hip condition The Veteran attended a VA examination in June 2019. He reported pain and a snapping sensation in the anterior and lateral hip that traveled down his leg to his knee, left side worse than his right side. He told the examiner that he was required to stand for long periods of time in the turret of a Humvee, and he believed this caused his hip conditions. The examiner determined that the Veteran had femoral acetabular impingement syndrome on the left side. He determined that the Veteran’s hip disability was less likely than not related to his service because the STRs did not reflect any hip treatment. The examiner did not provide any opinion was to the Veteran’s contention that the prolonged standing in the turret of the Humvee caused his hip condition. An opinion addressing the Veteran’s contentions is necessary prior to adjudication. The examiner also did not provide any opinion regarding the Veteran’s right hip, stating that the muscle strength and range of motion were normal, so the Veteran did not have a diagnosed disability. During his examination, the Veteran did report right hip pain. In Saunders v. Wilkie, 886 F.3d 1356(Fed. Cir. 2018), the Court of Appeals for the Federal Circuit held that pain resulting in functional impairment of earning capacity, even in the absence of an identified underlying diagnosis, may constitute a disability. Clarification is needed to determine whether the Veteran suffers from functional impairment of earning capacity due to right hip pain or limitation. 7. Entitlement to a rating in excess of 10 percent from June 26, 2019 for right knee chondromalacia 8. Entitlement to a rating in excess of 10 percent from June 26, 2019 for right knee chondromalacia 9. Entitlement to a compensable rating prior to February 7, 2017 for left knee chondromalacia 10. Entitlement to a rating in excess of 10 percent from February 7, 2017 for left knee chondromalacia During a September 2019 VA examination, the Veteran reported receiving chiropractic and acupuncture treatment for his right and left knees. A remand is required to allow VA to obtain authorization and request these records. Additionally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria, a new examination is warranted. During the appeal, the Veteran at one point reported that he was unemployed, but he subsequently used VA Vocational Rehabilitation benefits to attend education courses with above average grades. To the extent that the Veteran or the record raises the issue of entitlement to a total disability rating based on individual unemployability, it is intertwined with the remanded issues and will not be addressed in this decision. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private knee or hip treatment, to include acupuncture and chiropractic records. Make two requests for the authorized records from unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for examination by an appropriate clinician to determine the nature and etiology of any right or left hip disability. The examiner must opine whether the Veteran suffers from right or left hip disabilities that are at least as likely as not related to an in-service injury, event, or disease. As part of any opinion rendered, the examiner must also attempt to elicit information from the Veteran regarding any functional impairment caused by pain stemming from his hips. The examiner should opine as to whether it is at least as likely as not that the Veteran experiences functional impairment of earning capacity caused by pain stemming from his right or left hip. Note: pain alone, even without an underlying pathology or diagnosis, can constitute a disability when it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is asked to address the Veteran’s contentions that the prolonged standing in turret while on Humvee caused any hip condition in the opinion rendered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.