Citation Nr: 21021425 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 13-19 419 DATE: April 13, 2021 ORDER Entitlement to service connection for residuals of a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicide agents is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and/or exposure to herbicide agents is denied. Entitlement to service connection for hypogonadism, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicide agents is denied. Entitlement to a compensable rating prior to November 9, 2017 for residuals of a traumatic brain injury (TBI) is denied. Entitlement to an increased rating in excess of 10 percent from November 9, 2017 for residuals of a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The preponderance of evidence shows that the Veteran’s pituitary gland disorder was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. A pituitary gland disorder is not caused or aggravated by service-connected disability. 3. The preponderance of evidence shows that the Veteran’s erectile dysfunction was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. An erectile dysfunction disorder is not caused or aggravated by service-connected disability. 5. The preponderance of evidence shows that the Veteran’s hypogonadism disorder was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 6. A hypogonadism disorder is not caused or aggravated by service-connected disability. 7. Prior to November 9, 2017, the Veteran’s traumatic brain injury symptoms do not warrant higher than level “zero” impairment on the table of facets. 8. After November 9, 2017, the Veteran’s traumatic brain injury symptoms do not warrant higher than level “one” impairment on the table of facets. CONCLUSIONS OF LAW 1. The criteria for service connection for a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 2. The criteria for service connection for an erectile dysfunction disorder, to include as secondary to diabetes mellitus, type II, have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 3. The criteria for service connection for a hypogonadism disorder, to include as secondary to diabetes mellitus, type II, have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for an initial compensable rating prior to November 9, 2017 for service-connected traumatic brain injury have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code 8045 (2020). 5. The criteria for an increased rating in excess of 10 percent from November 9, 2017 for service-connected traumatic brain injury have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code 8045 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1965 to September 1969. The Veteran’s service personnel records document service in the Republic of Vietnam from June 6, 1966 to December 14, 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a July 2017 travel Board hearing. A transcript of that hearing has been associated with the claims file. The Board remanded the issues on appeal for additional development in October 2017 and again in December 2018. The directives having been substantially complied with, the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in a July 2018 rating decision, the RO granted a compensable rating of 10 percent for the Veteran’s service connected TBI, effective from November 9, 2017. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran is retired but has not indicated that his service-connected disabilities prevent him from finding and maintaining gainful employment. The Board notes the Veteran previously claimed a TDIU on the basis he was retired, but was denied because the RO determined his service-connected disabilities did not prevent the Veteran from gainful employment, and the Veteran did not appeal that decision. As such, the Board declines at this time to infer a claim for TDIU. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. Further discussion regarding SMC occurs below in the section regarding the TBI increased rating claim. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include endocrinopathies, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For endocrinopathies, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for a qualifying peripheral neuropathy disability 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. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Finally, service connection can also be established based on herbicide agent exposure. 38 C.F.R. § 3.307(a)(6). For the purposes of determining herbicide agent exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). The Board has previously conceded the Veteran’s service on the ground in the Republic of Vietnam for the purposes of presumptive herbicide exposure, and will not disturb that finding. If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Therefore, if the Veteran’s disease is not listed in 3.309(e), it is not a presumptive condition. See Notice, 67 Fed. Reg. 42600-42608 (2002). Here, the Veteran’s claimed erectile dysfunction, pituitary gland disorder, and hypogonadism are not listed in 38 C.F.R. § 3.309(e), and as such, the Board finds that presumptive service connection for those three claimed conditions pursuant to herbicide agent exposure is not possible. Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Evidence and Analysis The Veteran made his original claim for his pituitary gland disorder, his erectile dysfunction, and his hypogonadism along with a claim for diabetes mellitus, type II in September 2009. The Veteran contends that his pituitary gland disorder, his erectile dysfunction, and his hypogonadism are related to active service, to include as secondary to diabetes mellitus, type II, and also possibly as due to exposure to herbicides based his service in Vietnam. The Veteran testified before the undersigned VLJ in July 2017 that doctors had previously told him his pituitary gland problem, his erectile dysfunction, and his hypogonadism were related to diabetes. The Veteran was awarded entitlement to service connection for diabetes mellitus, type II, in a January 2021 rating decision, effective from May 8, 2020. As noted previously, the Veteran’s three claims for his pituitary gland disorder, his erectile dysfunction, and his hypogonadism are not eligible by regulation for presumptive service connection via herbicide exposure, and thus the Board’s discussion will focus on direct and/or secondary service connection as due to service connected diabetes. Because the RO evaluated these three claims together, including the opinions for service connection, the Board will discuss them together. The Veteran’s pituitary gland disorder and hypogonadism were originally diagnosed in an August 2008 private medical record from an endocrinologist, who also had referenced erectile dysfunction. That physician referred to a urologist to evaluate the Veteran’s erectile dysfunction that time as well, and a formal diagnosis of erectile dysfunction was made at that time. The Board notes that earlier VA treatment notes mention erectile dysfunction by history as far back as 1995 but active diagnosis and treatment is not noted until the August 2008 date. VA provided negative opinions for service connection for considering both direct and secondary possibilities for the claimed pituitary gland disorder, the erectile dysfunction, and the hypogonadism. In October 2019, VA provided an examination for the three disabilities, and a VA examiner diagnosed each of the three, noting that he considered all three to be related endocrine diseases. The examiner noted the claims file evidence and that the Veteran’s active service treatment records from September 1965 to September 1969 were silent for any mention or symptoms attributable to a pituitary gland disorder, the erectile dysfunction, and the hypogonadism. The examiner also noted the Veteran’s presumed exposure to Agent Orange due to his service in Vietnam in 1966 and 1967. This VA examiner opined in an opinion for direct service connection that the Veteran’s pituitary gland disorder, erectile dysfunction, and hypogonadism were less likely than not, less than 50 percent probability, incurred in or caused by active service. The examiner’s rationale was that there was no mention of the three disabilities anywhere in the four years of the Veteran’s active service, and no record immediately after service. The examiner pointed out that the earliest mention of any endocrine-related disability of the pituitary gland or the related hypogonadism was in August 2008, 39 years after the end of active service. Erectile dysfunction had been noted by history as early as 1995, but that was 26 years after active service. That examiner also opined the Veteran’s claimed pituitary gland disorder, erectile dysfunction, and hypogonadism were less likely than not, less than 50 percent probability, due to herbicide agent exposure, including Agent Orange. The examiner’s rationale was that while medical literature in a few studies noted elevated odds for endocrine disease combined with high exposures of Agent Orange, that there have been no epidemiologic studies that Agent Orange causes any endocrine related disorder, and at this time is certainly not conclusive nor likely. The examiner emphasized that generally while correlation had been noted in studies between Agent Orange and endocrine conditions, that causation has not been established, and thus it was unlikely that the Veteran’s pituitary gland disorder, erectile dysfunction, and hypogonadism were due to exposure to herbicide agents. The examiner also opined on secondary service connection for the pituitary gland disorder, erectile dysfunction, and hypogonadism, saying each was less likely than not, less than 50 percent probability, caused or aggravated by service-connected disability, to include diabetes, coronary artery disease, or the Veteran’s traumatic brain injury. The examiner noted the Veteran’s diabetes was not formally diagnosed until May 2020, and even though the Veteran’s blood sugar was noted to have risen several years before that, the claimed pituitary gland disorder, erectile dysfunction, and hypogonadism began no later than August 2008, well before the Veteran’s diabetes was formally diagnosed. Regarding the Veteran’s service-connected coronary artery disease, the examiner noted that the only one of the three disabilities at issue, erectile dysfunction, could be related to coronary artery disease. The examiner expanded, noting it was less likely than not that the erectile dysfunction was caused by the coronary artery disease, and also that the erectile dysfunction aggravated beyond normal progression by his coronary artery disease. The examiner noted the coronary artery disease could contribute to or aggravate the erectile dysfunction, but that any such aggravation was again not beyond any normal progression of the Veteran’s erectile dysfunction. Regarding the traumatic brain injury, the examiner noted it is generally possible to have endocrine-related symptoms after a traumatic brain injury, but those symptoms would appear within a few weeks of the brain injury, and here, the TBI noted in the Veteran’s records occurred during his tour in Vietnam in 1967 while the three endocrine-related claims occurred no earlier than possibly 1995, thus making it unlikely that the Veteran’s TBI was related to his pituitary gland disorder, erectile dysfunction, and hypogonadism, which were diagnosed at a minimum 28 years later. The Board finds the September/October 2020 VA examinations and opinions to be of great probative value. The examiners went into detail with the Veteran’s medical and service history, conducted a thorough review of the claims file, and considered the Veteran’s contentions and clinical medical evidence before providing a negative opinion for both direct and presumptive service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The negative VA opinions considered all of the Veteran’s contentions as to his theories of service connection for his pituitary gland disorder, erectile dysfunction, and hypogonadism. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiners’ negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran’s contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his belief that his pituitary gland disorder, erectile dysfunction, and hypogonadism disabilities are related to service. In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; “[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of [his] personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran is competent to testify about his symptoms relating to his claimed pituitary gland disorder, erectile dysfunction, and hypogonadism disabilities. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of a pituitary gland disorder, erectile dysfunction, or hypogonadism disability. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board also notes that the Veteran’s service records were silent for any pituitary gland disorder, erectile dysfunction, and hypogonadism symptoms or related complaint, and his first complaint does not arise until 1995 at the earliest. The Board finds the gap in time between the end of active service in 1969 until the 1995 possible occurrence of symptoms of the pituitary gland disorder, erectile dysfunction, and hypogonadism to be probative of a lack of nexus between service and the current complaints. There are no competent medical opinions of probative value in favor of a positive nexus to active service from any VA examiner or medical treatment provider from any source. 1. Entitlement to service connection for residuals of a pituitary gland disorder, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicide agents 2. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II and/or exposure to herbicide agents 3. Entitlement to service connection for hypogonadism, to include as secondary to diabetes mellitus, type II, and/or exposure to herbicide agents Upon review of the record, the Board concludes that entitlement to service connection for pituitary gland disorder, erectile dysfunction, or hypogonadism is not warranted. The Board notes a current diagnoses of pituitary gland disorder, erectile dysfunction, and hypogonadism, and thus the requirement for a current disability is shown for each. The Board acknowledges the Veteran’s contentions, and the Veteran’s post-service statements are noted. The Board notes that the Veteran’s entrance examination, his service treatment records, and his separation examination were all silent for any pituitary gland disorder, erectile dysfunction, and hypogonadism symptoms. The final physical examination of July 1969, two months prior to separation from active service, is silent for any existing pituitary gland disorder, erectile dysfunction, and hypogonadism symptoms or related injury at the time of separation from active service, and there is no competent evidence to tie the current assertions to any in-service disease or injury. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct or secondary service connection for a pituitary gland disorder, erectile dysfunction, and hypogonadism. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. With regard to presumptive service connection based on herbicide exposure, the Veteran has no diagnosis or condition that qualifies for presumptive service connection based on herbicide exposure in Vietnam. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran’s claimed pituitary gland disorder, erectile dysfunction, and hypogonadism disabilities were not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a pituitary gland disorder, erectile dysfunction, and hypogonadism disability on a direct, secondary, or presumptive basis, and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s residuals of traumatic brain injury are rated under Diagnostic Code 8045, which provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: (1) cognitive, which is common in varying degrees after a traumatic brain injury; (2) emotional/behavioral; and (3) physical. Each of those areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board notes the Veteran is also service-connected for posttraumatic stress disorder (PTSD) with a 70 percent rating originating from December 23, 1975. 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 an individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, should be evaluated separately even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130, the schedule of ratings for mental disorders, when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” 38 C.F.R. § 4.124a, Diagnostic Code 8045. Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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. Each condition is evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation; and combined under 38 C.F.R. § 4.25 for each separately rated condition. The rating assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the rating for a single condition for purposes of combining with other disability ratings. 38 C.F.R. § 4.124a, Diagnostic Code 8045. 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, or other reason, must be considered. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment and subjective symptoms are evaluated using the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” which contains ten important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. That table provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth 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, because any level of impaired consciousness would be totally disabling. A 100 percent rating is assigned if total is the level of evaluation for one or more facets. If no facet is evaluated as total, the overall percentage rating is based on the level of the highest facet. If the highest is 0, then a 0 percent rating is assigned. If the highest is 1, then a 10 percent rating is assigned. If the highest is 2, then a 40 percent rating is assigned. If the highest is 3, then a 70 percent rating is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8045. There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation based on the same manifestations is not to be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned 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, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (2). Instrumental activities of daily living refer 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. Those 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. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (3). The terms mild, moderate, and severe traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. That classification does not affect the rating assigned under Diagnostic Code 8045. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (4). 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 of 0 for no complaints of impairment of memory, attention, concentration, or executive functions; 1 for 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 for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and total for 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 of 0 for normal; 1 for 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 for 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 for 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 for 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 of 0 for social interaction is routinely appropriate; 1 for social interaction is occasionally inappropriate; 2 for social interaction is frequently inappropriate; and 3 for social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations of 0 for always oriented to person, time, place, and situation; 1 for occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; 2 for occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; 3 for often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and total for 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 of 0 for motor activity normal; 1 for 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 for motor activity mildly decreased or with moderate slowing due to apraxia; 3 for motor activity moderately decreased due to apraxia; and total for motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations of 1 for 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 for 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 for moderately severely impaired, gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and total for 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 0 for 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 for 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 for 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 of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability, any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and 3 for 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 of 0 for able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; 1 for comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, can communicate complex ideas; 2 for 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 for 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 for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, unable to communicate basic needs. Impairment of consciousness is assigned a designation of total for persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Evidence and Analysis The present claim for an increased initial disability rating for the service-connected traumatic brain injury stems from the initial grant of service connection in a June 2010 rating decision, effective from September 29, 2009, the date of the original claim. The Veteran had complained of a head injury suffered in his Vietnam service in 1967 was causing current day symptoms, per his September 2009 claim. The Board also notes that the Veteran is service connected for posttraumatic stress disorder (PTSD) with a 70 percent rating effective from December 23, 1975. The Veteran received his first TBI evaluation from VA in April 2010. For each of the following TBI assessment criteria, the Board will also note the associated severity of that facet, based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. On cognitive assessment, the Veteran demonstrated no memory loss (0), normal judgment (0), normal social interaction (0), normal orientation (0), normal motor activity (0), normal visual spatial orientation (0), subjective symptoms that did not interfere with work (0), no neurobehavioral effects that interfere with work or social interaction (0), the full ability to communicate by spoken and written language (0), and normal consciousness (0). The examiner indicated there was no evidence of current residuals of TBI in the Veteran found during this examination. The Veteran received another VA TBI examination in November 2017. The Veteran was seen in person, and the examiner indicated that they reviewed the Veteran’s claims file. For each of the following TBI assessment criteria, the Board will also note the associated severity of that facet, based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. On cognitive assessment, the Veteran demonstrated mild memory loss (1), normal judgment (0), social interaction (0), normal orientation (0), normal motor activity (0), normal visual spatial orientation (0), subjective symptoms that did not interfere with work (1), one or more neurobehavioral effects that did not interfere with work or social interaction (1), the full ability to communicate by spoken and written language (0), and normal consciousness (0). For no facets was the Veteran described as having a “total” impairment. Additional residuals included headaches. The examiner specifically noted neurobehavioral symptoms to include “agitation, irritable mood, verbal aggression, difficulty with concentration, [and] memory impairment.” A VA psychiatrist provided another VA TBI review evaluation in October 2019. This evaluator provided a similar evaluation as the November 2017 examiner but also noted there had not been a discussion in that examination report regarding the impact of the Veteran’s service-connected PTSD on his TBI symptoms. The Veteran received a VA review PTSD examination in July 2020. While that issue on not on appeal, this examiner noted that the Veteran’s current PTSD symptoms could not be distinguished from his TBI disability, and that there was substantial overlap. 4. Entitlement to a compensable rating prior to November 9, 2017 for residuals of a traumatic brain injury (TBI) Based on the medical evidence, for the period prior to November 9, 2017, the Board considers the Veteran’s TBI warrants a noncompensable rating. Here, the April 2010 examiner found no evidence of current residuals of TBI in the Veteran, and all facets were rated “0.” A separate rating is also not warranted for any physical or cognitive impairment beyond those ratings that have already been assigned. 5. Entitlement to an increased rating in excess of 10 percent from November 9, 2017 for residuals of a traumatic brain injury (TBI) For the period from November 9, 2017 forward, the Board considers that the Veteran’s TBI warrants a 10 percent rating, but no higher, based on the highest level of severity being a “1.” A higher evaluation of 40 percent is not warranted unless the highest level of severity is a “2.” A separate rating is also not warranted for any physical or cognitive impairment beyond those ratings that have already been assigned. In light of the foregoing, the Board finds that the assigned noncompensable disability rating prior to November 9, 2017, and 10 percent afterwards, are the highest ratings that may be assigned given the symptoms set forth above attributable to the service-connected traumatic brain injury, that are not already accounted for by the service-connected PTSD. The Board finds that the preponderance of the evidence is against a finding that any of the facets warranted the assignment of a level “1” or higher. A separate rating is also not warranted for any physical or cognitive impairment beyond those ratings that have already been assigned. Importantly, the rule against pyramiding prohibits the assignment of separate disability ratings for the same symptom. In other words, the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. It is possible to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board notes the additional opinion from the VA review PTSD examination of July 2020 where the examiner noted that the symptoms of the TBI could not be distinguished from that of the Veteran’s service-connected PTSD. If the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). The Board has also considered the instruction of Diagnostic Code 8045 to consider the Veteran’s need for special monthly compensation. However, neither the Veteran nor the evidence suggest loss of use of an extremity, sensory impairments, or the need for aid and attendance due to residuals of a traumatic brain injury. It is noted that the issue of entitlement to special monthly compensation for the need of aid and attendance due to all of the Veteran’s service-connected disabilities is the subject of the Remand below. After careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds no other diagnostic codes that would be appropriate to rate residuals of traumatic brain injury. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s TBI disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond that discussed, as the Veteran has had a stable level of symptomatology throughout each rating period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505. (CONTINUED ON NEXT PAGE) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.