Citation Nr: 21040354 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 15-35 924 DATE: July 3, 2021 ORDER Entitlement to service connection for a sleep disorder, to include obstructive sleep apnea (OSA) is denied. Entitlement to an initial disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating greater than 40 percent for a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected lower back strain and a service-connected left hip disability is remanded. Entitlement to a disability rating greater than 10 percent for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that snoring is a symptom of the Veteran's service-connected PTSD and is not secondary to a condition other than PTSD. 2. The Veteran's PTSD more nearly approximated occupational and social impairment with deficiencies in most areas; the preponderance of the evidence shows the Veteran did not suffer total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.. 3. The Veteran's TBI manifests in objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; occasional disorientation to one of the four aspects of orientation; mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; frequently inappropriate social interaction due to irritability and hypervigilance; three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; family or other close relationships; and one or more neurobehavioral effects that frequently interfere interaction, social interaction, or both but do not preclude them. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep disorder, to include OSA have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317, 3.304, 3.310. 2. The criteria for a disability rating greater than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for an initial disability rating greater than 40 percent for a TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to September 1999, from November 2002 to October 2003, from January 2005 to June 2006, and from November 2010 to February 2012. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2013 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied a disability rating greater than 10 percent for GERD and remanded the issues of service connection for a sleep disorder, to include OSA, service connection for a right hip disability, an initial disability rating greater than 40 percent for TBI, and a disability rating greater than 70 percent for PTSD in a September 2018 decision. The Veteran disagreed with the Board's denial of an increased rating for GERD and appealed to the Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued a Joint Motion for Partial Remand (JMPR). This JMPR vacated and remanded the September 2018 Board decision denying a rating greater than 10 percent for GERD because it failed to consider the Veteran's GERD disability absent the ameliorative effects of the prescribed medication used to manage GERD. In April 2020, the Board again denied the Veteran's claim for an increased initial rating for GERD. The Veteran appealed to the Court and it vacated and remanded the matter in a February 2021 Order pursuant to a Joint Motion for Remand (JMR). Therefore, the issues on appeal are properly before the Board for adjudication. 1. Entitlement to service connection for a sleep disorder, to include OSA, is denied. The Veteran contends service connection is warranted for a sleep disorder, to include OSA. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 44748 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998). Service connection may be granted for disability resulting from disease or injury incurred during a period of active duty for training (ACDUTRA) or injuries incurred during inactive duty for training (INACDUTRA). See 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. Service connection is not legally merited when the disability results from a disease process during INACDUTRA. See, e.g., Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The Veteran underwent a comprehensive diagnostic polysomnography on December 13, 2013. A summary of the polysomnography found no evidence of clinically significant OSA. The Veteran's apnea hypopnea index (AHI) was within normal limits and he obtained excellent sleep efficiency. Although mild snoring was heard, the Veteran showed no EEG abnormalities and all stages of sleep were observed. On December 16, 2013 the Veteran's treatment provider notified him the diagnostic results did not show OSA and recommended suggestions for sleep hygiene, modest weight loss, and ordered him to return to the clinic if his symptoms did not improve within six months. The Veteran was afforded a VA examination in November 2019. The examiner reviewed the Veteran's medical records, lay statements, and conducted an in-person examination. The examiner stated that OSA is typically diagnosed by an AHI greater than five events per hour of sleep. The examiner also indicated that the Veteran uses Trazadone daily to control a sleep disorder. Treatment records show that the Veteran was prescribed Trazadone on April 24, 2013 by his treating psychiatrist after reporting continued trouble with sleep. Based on the examiner's review of the record, in-person examination, and the December 2013 polysomnography, the examiner determined there was no evidence of clinically significant OSA. There are no competent medical opinions to the contrary. The Veteran's personal assertions that he has a sleep disorder, to include OSA as a result of active service, to include PTSD and asthma have been reviewed. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. Nothing in the record indicates that he received any special training or acquired any medical expertise evaluating complicated medical disabilities. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The medical evidence of record specifically addressing the matter is found to be the most persuasive. The Board acknowledges complaints of snoring to treatment providers post-service and reports of sleep disturbances during periods of active service, including feeling sleepy and snoring. The Veteran's complaints of snoring do not prove to be of itself a disability within the meaning of the controlling law and regulations. Further, putting aside that a disability manifested by snoring has not been diagnosed during the course of the Veteran's appeal, there is no evidence of record that supports that the Veteran's snoring is related to service or is a disability that is separate from a symptom of his service-connected PTSD, for which he is already compensated for. The Veteran's representative cites to two medical articles linking asthma and PTSD to OSA. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1). However, treatise evidence must not simply provide speculative generic statements not relevant to the [claimant]'s claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, standing alone, must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Wallin. In this case, the medical articles only provide general information as to the possibility of a link between asthma, PTSD, and OS A. This information is not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest that the Veteran's alleged OSA was caused or aggravated by active service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. The Court has long held that speculative carry little evidentiary value. As such, the Board finds this information to be overbroad and not relevant as to the matter for consideration and, therefore, is not probative to this case. See also Wallin; Sacks. In November 2020, the Veteran's representative argued that the November 2019 VA examination failed to comply with the Board's 2018 remand directives and required another remand for further development. He states the VA examination is inadequate because the Veteran was afforded a Sleep Apnea DBQ, a disability the Veteran does not have. The Veteran's representative states that the examiner indicated the Veteran is prescribed trazadone for the control of a sleep disorder condition. His argument rests on the premise that the VA examiner did not specifically address whether the Veteran has a sleep disorder separate and distinct from his service-connected PTSD. The Board has considered the November 2020 argument and finds that additional development is not warranted. The VA examiner correctly indicated the Veteran did not have a diagnosis of OSA. The examiner did in fact indicate that the Veteran only suffered from snoring which is common in adults with PTSD. As discussed above, treatment notes show the Veteran was prescribed Trazadone by his psychiatrist for due to sleep difficulties. Moreover, the Veteran reported improved sleep on May 22, 2013 and that he was "sleeping good on Trazadone" by August 23, 2013. Finally, the examiner clearly and unequivocally stated that the Veteran's snoring is less likely secondary to a condition other than PTSD. Neither the Veteran nor his representative have provided competent evidence suggesting otherwise. More importantly, neither the Veteran nor his representative provided competent evidence of a disability manifested by snoring that is distinct and separate from PTSD. Based on the foregoing, the Board denies the claim of service connection for a sleep disorder, to include OSA under any theory of entitlement. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim for entitlement to service connection, that doctrine is not applicable here. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). INCREASED RATING Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a disability rating greater than 70 percent for posttraumatic stress disorder (PTSD) The Veteran contends an initial disability rating greater than 70 percent for PTSD is warranted. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130 under the General Rating Formula for Mental Disorders. Pursuant to DC 9411, a 70 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran underwent a VA examination in September 2013. The examiner diagnosed PTSD which caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported he was married, worked as a security officer, and never experienced legal, behavioral, nor substance abuse issues. The examiner stated the Veteran suffered from anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability establishing and maintaining effective relationships, and neglect of personal appearance and hygiene. The Veteran reported he avoided long lines and people. The Veteran was afforded a VA examination in March 2018. The examiner diagnosed PTSD and identified a diagnosed TBI. The examiner stated that the Veteran's concentration and cognition issues are likely due to his TBI, PTSD, sleep disturbances, and migraine headaches. The Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran reported he has been married since 2012 and was able to communicate with his spouse. They have two biological children together. His spouse has two children from a prior relationship who live with them, and he has a 17-year-old daughter from a prior relationship. The Veteran reported his relationship with the children is "OK" and he was able to reconnect with his 17-year-old daughter in 2016, which included visits during school breaks. The Veteran has good relationships with his siblings and parents. He texts with friends and spends his leisure time with his family, watching television, and completing chores. The Veteran works full-time as a boat mechanic and was satisfied with his employer. He reported feeling anxious and having intrusive thoughts when he is in busy or crowded areas. The Veteran also reported arguing with family members, sleep disturbances, and difficulty concentrating. The examiner indicated the Veteran suffered from depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner stated that the Veteran was cooperative, his mood was neutral, and his affect was stable. He did not exhibit or report suicidal ideation, homicidal ideation, audio hallucinations, nor visual hallucinations. His speech was of average rate, tone, and prosody. The Veteran underwent a VA examination in October 2019 and was diagnosed with PTSD, major depressive disorder (MDD), and other specified sexual dysfunction. The examiner was unable to differentiate what symptoms were attributable to each disorder because there are shared symptoms between PTSD and MDD. The examiner could not differentiate which symptoms are attributable to TBI and any non-TBI mental health diagnosis. The examiner stated that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran reported his marriage was a little rocky due to his sexual dysfunction, however he and his spouse agreed to work on the marriage and attend couple's therapy. The Veteran has good relationships with his children, stepchildren, brothers, and parents. He reported no close friendships but he participated in many hobbies, including fishing, boating, and completing chores around the house. The Veteran is still employed at the boat marina and is attending courses in furtherance of certifications in marine mechanics. He stated that he has nightmares, depression, lacked motivation, is easily irritable, memory difficulties, and sexual addiction. The Veteran denied aggression, violence, suicidal ideation, and homicidal ideation. The examiner indicated the Veteran suffered from depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner stated that the Veteran appeared at the examination casually dressed, with good hygiene and good eye contact. He was calm, pleasant, and oriented to time, place, person, and situation. The examiner stated his judgment and insight were good. After a review of the evidence of record, the Board finds that the assignment of a rating greater than 70 percent is not warranted. In this regard, the evidence does not demonstrate the level of impairment more nearly approximating a 100 percent rating. Specifically, the evidence of record does not show symptomatology that more closely approximates total occupational and social impairment due to symptoms such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The Veteran denied suicidal ideation, homicidal ideation, delusions, and perceptual disturbances; his judgment and insight were intact; he had proper grooming; and his thoughts were organized and goal directed as noted in VA treatment notes in March 2013, April 2013, May 2013, August 2013, October 2013, November 2013, February 2014, May 2014, August 2014, October 2015, January 2016, March 2016, July 2016, January 2017, January 2018, July 2018, October 2018, May 2019, July 2020, and August 2020. Treatment records show the Veteran reported living with his spouse, children, and stepchildren. He had a good relationship with his family, including his siblings and parents. The Veteran is employed full-time, attends courses related to marine mechanics, and engaged in leisurely activities such as boating and fishing. Such evidence belies the notion of symptomatology more closely approximating total occupation and social impairment. The Board recognizes the Veteran's lay statements that a higher rating should be assigned. The Veteran is competent to report his current psychiatric symptoms as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the medical examiner and the Veteran's private healthcare providers have considered his lay statements with regard to the severity of his disability and have provided findings which directly address the criteria under which the disability is evaluated. As such, the Board finds the medical evidence of record the most probative. Therefore, based on a complete review of the record and on the totality of the evidence, the Board finds that the Veteran's PTSD does not manifest in total social and occupational impairment. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial disability rating greater than 40 percent for a traumatic brain injury (TBI) Residuals of a TBI are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. They are rated in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Under DC 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. 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. Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified. However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table. Id. 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. 38 C.F.R. § 4.124a, DC 8045. 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. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate DC. 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. 38 C.F.R. § 4.124a. 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. Id. Evaluation of Cognitive Impairment and Subjective Symptoms requires consideration of the table Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified, which contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled total. 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. Id. 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. Id. For the facet memory, attention, concentration, executive functions, a 0 level of impairment is assigned with no complaints of impairment. A 1 level is assigned with complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, finding words or often misplacing items), attention, concentration or executive functions, but without objective evidence on testing. A 2 level is assigned with objective evidence on testing of mild impairment. A 3 level is assigned with objective evidence on testing of moderate impairment. A total level is assigned with objective evidence on testing of severe impairment. For the facet judgment, a 0 level of impairment is assigned for normal judgment. A 1 level is assigned with 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. A 2 level is assigned with 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. A 3 level is assigned with moderately severely impaired judgment; for even routine and familiar decisions, occasionally unable to identify, understand, weigh the alternatives, and make a reasonable decision. A total level is assigned with 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 and activities. For the facet social interaction, a 0 level of impairment is assigned when social interaction is routinely appropriate. A 1 level is assigned when social interaction is occasionally inappropriate. A 2 level is assigned when social interaction is frequently inappropriate. A 3 level of impairment is assigned when social interaction is inappropriate most or all of the time. For the facet orientation, a 0 level of impairment is assigned when always oriented to person, time, place and situation. A 1 level is assigned when occasionally disoriented to one of the four aspects of orientation. A 2 level is assigned when occasionally disoriented to one of the four aspects of orientation or often disoriented to one aspect of orientation. A 3 level is assigned when often disoriented to two or more of the four aspects of orientation. A total level is assigned when constantly disoriented to two or more of the four aspects of orientation. For the facet motor activity, (with intact motor and sensory system) a 0 level of impairment is assigned for normal motor activity. A 1 level is assigned for motor activity that is normal most of the time but mildly slowed at times due to apraxia (inability to perform previously-learned motor activities despite normal motor function). A 2 level is assigned for motor activity mildly decreased or with moderate slowing due to apraxia. A 3 level is assigned for motor activity moderately decreased due to apraxia. A total level is assigned for motor activity severely decreased due to apraxia. For the facet visual spatial orientation, a 0 level of impairment is assigned when normal. A 1 level is assigned when 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). A 2 level is assigned when 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. A 3 level is assigned when moderately severely impaired: gets lost even in familiar surroundings; unable to use assistive devices such as GPS. A total level is assigned when 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. For the facet subjective symptoms, a 0 level of impairment is assigned for subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family of other close relationships (examples are mild or occasional headaches or mild anxiety). A 1 level is assigned with three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family of 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). A 2 level is assigned with three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or, work, family of 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). For the facet neurobehavioral effects, a 0 level of impairment is assigned 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 more likely to have a more serious impact on workplace interaction and social interaction than some other effects. A 1 level is assigned with one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. A 2 level is assigned with one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. A 3 level is assigned with 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. For the facet communication, a 0 level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. A 1 level is assigned when comprehension or expression, or both, of either spoken or written language is only occasionally impaired; can communicate complex ideas. A 2 level is assigned with inability to communicate either by spoken language, written language, or both, more than occasionally but less than half the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half the time; can generally communicate complex ideas. A 3 level is assigned with inability to communicate either by spoken language, written language, or both, at least half the time but not all the time, or to comprehend spoken language, written language, or both, at least half the time but not all the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. A total level is assigned 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. For the facet consciousness, a total level of impairment is assigned for persistently altered state of consciousness, such as vegetative state, minimally responsive state, and coma. DC 8045 also contains five notes. 38 C.F.R. § 4.124a, DC 8045, Notes (1)-(5). 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 DC. 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 TBI, which may appear in medical records, refer to a classification of TBI 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 DC 8045. Note (5): A veteran whose residuals of TBI are rated under a version of § 4.124a, DC 8045, in effect before October 23, 2008 may request review under DC 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under DC 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such a review, VA will apply 38 C.F.R. § 3.144, if applicable. The Veteran underwent a September 2013 VA examination for evaluation of a TBI. He was diagnosed with TBI, including dizziness, headaches, and memory loss attributable to TBI. The examiner noted objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran was occasionally disoriented to one of the four aspects of orientation. Specifically, the Veteran stated he was in Blue Springs when the examiner asked the Veteran what city he was in. They were in Kansas City, MO. The Veteran's judgment, motor activity, visual spatial orientation, and consciousness were normal. The Veteran's social interaction is routinely appropriate, and he did not suffer from neurobehavioral effects. He was able to communicate by spoken and written language and to comprehend spoken and written language. The examiner indicated his subjective symptoms (headaches that last approximately 15 minutes) do not interfere with work, instrumental activities of daily living, family or close relationships. The examiner noted headaches, dizziness, and memory loss attributable to TBI. Neuropsychological testing showed the Veteran's efficient mental flexibility as measured by a rapid visual motor scanning task was mildly impaired. His total score on the RBANS suggested some significant deficits in overall cognitive functioning; the most marked weakness involved delayed memory and nonverbal skills. The Veteran's attentional focus was also rated below average. The Veteran scored 27/30 on the Mini Mental State Exam. The VA examiner opined that the Veteran is unable to work during headaches. The Veteran was afforded a September 2019 VA examination. The examiner diagnosed TBI and posttraumatic migraine headaches. The examiner found objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. The Veteran's MOCA score was 19/30, and he missed 2/5 items on tests of recent memory, recovering one additional item with category clues. His social interaction is frequently inappropriate due to irritability and hypervigilance. The Veteran is occasionally disoriented to one of the four aspects of orientation. Specifically, he loses track of date or day and uses his smart phone for reminders. The examiner stated there were three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; family or other close relationships. The Veteran reported subjective symptoms of tinnitus, insomnia, and anxiety. The examiner stated one or more neurobehavioral effects that frequently interfere interaction, social interaction, or both but do not preclude them. The Veteran has frequent episodes of verbal aggression with coworkers. He has normal judgment, motor activity, visual spatial orientation, and consciousness. He is able to communicate by spoken and written language and to comprehend spoken and written language. The examiner noted headaches, dizziness, and mental disorders attributable to a TBI. There were no other pertinent physical findings, complications, conditions, signs or symptoms, or scars due to the TBI. The examiner recalled the diagnostic testing was conducted in 2012. Specifically, there was evidence of a mild to moderate cognitive impairment especially on tasks involving delayed memory and visual spatial skills. Attention skills were also below average considering the veteran's age and educational history. The examiner also noted a 2012 cognitive rehabilitation evaluation which found the Veteran demonstrated mild attention problems that likely affected his problems with memory. Visual memory appeared to be quite good relative to verbal memory. The Veteran's initial phonemic fluency difficulties were not within normal range. This is consistent with his subjection complaints of difficulty finding words during written assignments. The assessment indicated that the Veteran would benefit from additional strategy training for this problem. The VA examiner stated that the Veteran is able to work despite occasional headaches causing brief periods of disability and cognitive difficulties. Based on the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted. Evaluation under the 10 facets in the September 2013 Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table shows the Veteran scored a 0 level on all except for memory, attention, concentration, executive functions, and orientation. For the memory, attention, concentration, executive functions facets a 2 level of impairment is assigned and the orientation facets warrants a 1 level of impairment. Turning to the September 2019 VA examination report, the Veteran scored a 0 level of impairment for judgment, motor activity, visual spatial orientation, communication, and consciousness facets. A 1 level of impairment is assigned for the orientation and subjective symptoms facets. A 2 level of impairment is assigned for the memory, attention, concentration, executive functions, social interaction, and neurobehavioral effect facets. A higher 70 percent rating is available where a facet is shown to have a 3 level of impairment. This was not shown by the evidence of record. Thus, a higher 70 percent rating is not warranted. The Veteran has received separate evaluations for posttraumatic headaches associated with traumatic brain injury with dizziness/vertigo and memory loss, and PTSD with MDD and other specified sexual dysfunction has been assigned a 70 percent disability rating. Insofar as these residuals have a distinct diagnosis and have been evaluated under Diagnostic Codes 8100 and 9411, the Board will not consider migraine symptoms as a subjective symptom for the purposes of evaluating the Veteran's claim under DC 8045. Likewise, the Veteran's memory loss, neurobehavioral symptoms, impairment of judgment, and slowness of thought are encompassed in the rating that has been assigned for his service connected PTSD with MDD and other specified sexual dysfunction, and these symptoms cannot be considered separately under DC 8045. See 38 C.F.R. § 4.30. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected lower back strain and a service-connected left hip disability is remanded. The Board remanded this issue in September 2018 for a medical opinion discussing whether the Veteran's right hip disability was caused or aggravated by a service-connected lumbar spine disability or a service-connected left hip disability. A November 2019 VA examiner stated the Veteran's left hip condition was less likely caused by the service-connected lumbar spine disability. This report is inadequate as it does not address the questions posed by the Board in its 2018 remand directives. A September 2020 VA examiner stated that the right hip disability was less likely caused by the service-connected lumbar spine disability or the service connected left hip disability. Essentially, the examiner opined that the Veteran does not have a right hip disability because the Veteran denied pain and there is no evidence of tenderness, flareups, loss of strength, or clinically diminished range of motion. The examiner believed the Veteran's right hip is normal. However, VA treatment records show that the Veteran reported feeling his hips "have moved forward" (March 28, 2012), pain in the right hip (June 27, 2012) and feeling bilateral hip snapping (August 13, 2012). Additionally, VA examination reports in 2016 and 2019 show reduced right hip range of motion measurements during flexion. The Board notes that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain 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; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The November 2019 report was inadequate because it failed to discuss the etiology of the right hip disability. The September 2020 VA examination report is inadequate because the examiner did not address the question of aggravation. In cases where both causation and aggravation are at issue, a medical opinion must address both. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Therefore, the November 2019 and September 2020 examination reports are inadequate, and an addendum medical opinion is required. 2. Entitlement to a disability rating greater than 10 percent for GERD is remanded. The Board denied assigning a disability rating greater than 10 percent for GERD in September 2019 and April 2020. The Veteran appealed that decision to the Court which vacated and remanded the issue in October 2019 and February 2021. The Court's February 2021 Order indicated that the Board relied on evidence not in the record without providing the Veteran reasonable notice of such evidence nor was he given a reasonable opportunity to respond to it, and; provided inadequate reasons and bases for finding that the Veteran did not have dysphagia symptoms ameliorated by medication because he had obesity. The Board finds a new examination is required which addresses the current severity of the Veteran's disability without the ameliorative effects of any medication. Furthermore, the record shows that the Veteran's last VA examination was in June 2016, approximately five years ago. To ensure that VA has met its duty to assist, remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Obtain the Veteran's current treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether: 3. The Veteran's right hip disability is at least as likely as not related to active service 4. The Veteran's right hip disability is at least as likely as not caused by his service connected left hip disability and/or his service-connected lumbar disability 5. The Veteran's right hip disability is at least as likely as not aggravated by his service-connected left hip disability and/or his service-connected lumbar disability. 6. The Board notes that where pain causes functional impairment, a disability for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). 7. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. 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. The examiner must evaluate current severity of the Veteran's disability without the ameliorative effects of any medication. All opinions provided must be supported by adequate rationale. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.