POSTTRAUMATIC STRESS DISORDER (PTSD)

J.P. NORMAN · 2026 · Case ID: A26036387

MIXED

Summary

The veteran, who served in the U.S. Army from January 1978 to January 1981, appeals a November 2024 rating decision. The appeal addresses several issues, including an increased rating for PTSD with TBI, service connection for left eye disability, and effective dates for various conditions. The Board dismissed the increased rating claim for PTSD as a matter of law because the issue is pending before the U.S. Court of Appeals for Veterans Claims, constituting a prohibited concurrent review election. Service connection for a left eye disability was granted as secondary to the veteran's service-connected right eye disability, with the Board applying the benefit of the doubt doctrine due to approximate balance in the evidence. The Board also granted earlier effective dates of January 10, 2009, for service connection of vertigo, headaches, and tinnitus associated with PTSD/TBI, and for right eye conditions, finding that the veteran's initial "head injury" claim encompassed TBI and that the AOJ's effective date of June 24, 2015, was incorrect. The veteran's claim for an increased rating for headaches was granted at 30 percent, consistent with the evidence, but claims for increased ratings for vertigo and tinnitus were denied as the veteran was already receiving the maximum schedular ratings. The appeal for an increased rating for the right eye disability was denied as the evidence did not support a rating higher than the current 10 percent.

Rationale

Effective date corrected to January 10, 2009; Claim for "head injury" interpreted to include TBI; Benefit of the doubt applied due to approximate balance of evidence

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

251027-602264

Full Decision Text

Citation Nr: A26036387
Decision Date: 04/20/26 Archive Date: 04/20/26

DOCKET NO. 251027-602264
DATE: April 20, 2026

ORDER

The appeal regarding entitlement to an increased rating for post-traumatic stress disorder (PTSD) with mixed anxiety and depressed mood with traumatic brain injury (TBI) is dismissed as a matter of law.

Entitlement to service connection for a left eye disability is granted.

Entitlement to an effective date of January 10, 2009, but no earlier, for service connection for posttraumatic stress disorder with mixed anxiety and depressed mood with traumatic brain injury is granted.

Entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

Entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for a headache disability associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

Entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

Entitlement to an earlier effective date of January 10, 2009, but no earlier, for service connection for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is granted.

Entitlement to a disability rating of 30 percent, but no higher, for a headache disability is granted for the entire period on appeal.

Entitlement to a rating in excess of 30 percent benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is denied.

Entitlement to a rating in excess of 10 percent for tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is denied.

Entitlement to an increased disability rating for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is denied for the entire period on appeal.

FINDINGS OF FACT

1. The matter of entitlement to an increased rating for service-connected PTSD with TBI is actively pending before the U.S. Court of Appeals for Veterans Claims.

2. Resolving reasonable doubt in favor of the Veteran, the Veteran's left eye disability is due to his service-connected right eye disability.

3. The evidence of record clearly shows that the date VA received the Veteran's original claim filing for service connection is January 10, 2009, not March 9, 2009.

4. VA has awarded the Veteran service connection for his vertigo disability effective the date VA received the Veteran's initial claim filing for service connection for a traumatic brain injury.

5. VA has awarded the Veteran service connection for his headaches disability effective the date VA received the Veteran's initial claim filing for service connection for a traumatic brain injury.

6. VA has awarded the Veteran service connection for his tinnitus disability effective the date VA received the Veteran's initial claim filing for service connection for a traumatic brain injury.

7. The evidence of record clearly shows that VA received the Veteran's initial claim filing for service connection for his right eye disability on January 10, 2009 not on January 14, 2009.

8. For the entire period on appeal the Veteran's headaches have manifested as characteristic prostrating attacks occurring on an average of once a month.

9. The Veteran is already in receipt of a 30 percent rating for benign paroxysmal positional vertigo, which is the maximum schedular rating for that disability and the Veteran's disability does not present such an exceptional disability picture that the schedular evaluations are inadequate.

10. The Veteran is already in receipt of a 10 percent rating for tinnitus, which is the maximum schedular rating for that disability and the Veteran's disability does not present such an exceptional disability picture that the schedular evaluations are inadequate.

11. For the period on appeal prior to June 28, 2021 the Veteran's right eye disability manifested as normal visual acuity with no documented visual field defect, but from June 28, 2021 on the Veteran's right eye disability has manifested as unilateral concentric contraction of the right eye visual field with a remaining field of vision averaging 46.25 degrees.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim regarding entitlement to an increased rating for post-traumatic stress disorder (PTSD) have been met.
rating for tinnitus, which is the maximum schedular rating for that disability and the Veteran's disability does not present such an exceptional disability picture that the schedular evaluations are inadequate.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the claim regarding entitlement to an increased rating for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. § 5104C; 38 C.F.R. § 3.2500(b).

2. The criteria for service connection for a left eye disability as secondary to a right eye are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for entitlement to an effective date of January 10, 2009, but no earlier, for service connection for posttraumatic stress disorder with mixed anxiety and depressed mood with traumatic brain injury have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).

4. The criteria for entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).

5. The criteria for entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for a headache disability associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).

6. The criteria for entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).

7. The criteria for entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).

8. The criteria for entitlement to a disability rating of 30 percent, but no higher, for a headache disability have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

9. The criteria for entitlement to a disability rating in excess of 30 percent for benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury have not been met at any point during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.87, Diagnostic Code 6204.

10. The criteria for entitlement to a disability rating in excess of 10 percent for tinnitus have not been met at any point during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.87, Diagnostic Code 6260.

11. The criteria for a compensable rating from the beginning of the period on appeal through June 28, 2021 have not been met; the criteria for a rating in excess of 10 percent from June 28, 2021 have also not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§
point during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.87, Diagnostic Code 6260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1978 to January 1981. The Board of Veterans' Appeals (Board) sincerely thanks the Veteran for his honorable service to our country.

This case comes before the Board on appeal from a November 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the October 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Here the Board notes that the Veteran has waived any additional time within which to modify his chosen Board appeal lane. Id.

Therefore, the Board may only consider the evidence of record at the time of the November 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. The appeal regarding entitlement to an increased rating for post-traumatic stress disorder (PTSD) with mixed anxiety and depressed mood with traumatic brain injury (TBI) is dismissed as a matter of law.

The Veteran has continuously pursued a claim for a higher rating for his post-traumatic stress disorder (PTSD) disability since June 24, 2015. Notably, there is no dispute that the period on appeal for this matter is June 24, 2015 through the present.

This matter was most recently before the Board in January 2025. See January 2025 Board Decision.

As the Veteran's representative has explained, the Veteran timely perfected an appeal of this decision to the U.S. Court of Appeals for Veterans Claims (Court). See e.g. October 2025 Notice of Disagreement.

This matter is now actively pending before the Court.

With regard to the adjudication of a claim or an issue as defined in 38 C.F.R. § 3.151(c), a claimant who has filed for review under one of the options available under 38 C.F.R. § 3.2500(a) may not, while that review is pending final adjudication, file for review under a different available option. While the adjudication of a specific benefit is pending on appeal before a federal court, a claimant may not file for administrative review of the claim under any of options listed in 38 C.F.R. § 3.2500(a). See 38 C.F.R. § 3.2500.

As such, the Board determines that the present appeal constitutes a prohibited concurrent review election. As such, this appeal must be hereby DISMISSED.

2. Entitlement to service connection for a left eye disability is granted.

The Veteran seeks service connection for a left eye disability.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present
present appeal constitutes a prohibited concurrent review election. As such, this appeal must be hereby DISMISSED.

2. Entitlement to service connection for a left eye disability is granted.

The Veteran seeks service connection for a left eye disability.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Pursuant to the AMA, the Board is bound by previous findings of fact that are favorable to the Veteran. 38 C.F.R. §§ 3.104(c), 20.801. Here, the AOJ has found and conceded that the Veteran is currently diagnosed with left eye pseudophakia [Cataracs], chorioretinal scarring, and dry eye syndrome. See Rating Decision.

Therefore, the questions before the Board are 1) whether the Veteran had an in-service incurrence or aggravation of a left eye disability and 2) whether there is a nexus between that in-service incurrence and his current left eye disability.

The Veteran has received three VA eye examinations.

Here the Board notes that the Veteran has been service-connected for a right eye disability, stemming from an in-service injury to his right orbital socket [right orbital blowout fracture], since January 14, 2009. See e.g. March 2011 Rating Decision.

The first VA examiner noted that the Veteran's right eye showed evidence of a previous "very old" retinal tear corresponding with the Veteran's undisputed in-service right eye injury. See January 2020 VA Examination. However, the examiner did not find similar medical evidence in the Veteran's left eye to indicate a concurrent left eye injury. Id.

The Board notes that the Veteran has specifically asserted that this left eye condition was caused by "extreme UV radiation from welding, with prior trauma to the right eye." See March 2013 VA Form 21-4138.

The second VA examiner confirmed the Veteran's current diagnoses but concluded that "Neither the cataracts, chorioretinal scars, nor dry eye are caused by the claimed in service injury. Cataracts are an age related change. The faint chorioretinal scarring is consistent with a normal appearing retina. The dry eye is a chronic condition that happens over time. None of these findings are the result of the orbital blow out fracture OD." January 2022 VA Examination.

Here the Board highlights that the Veteran's service-connected right eye injury is for Cataracs, chorioretinal scarring, and dry eye. In other words, VA has already conceded that these same medical conditions were more likely that not caused by the Veteran's undisputed in-service orbital socket injury.

The third VA examiner noted that the Veteran believes that the injuries from his in-service orbital blowout fracture proximately caused his left eye condition. See November 2023 VA examination. The examiner added that, while no retinal scarring is visible in the Veteran's left eye, it is at least plausible, if not likely, that the Veteran did sustain some retinal injury to his left eye, but "the Veteran also has Pavingstone degeneration, and it is my opinion that there is a possibility the cryo scars from retinal hole repair OS are not obvious or easily distinguishable from his Pavingstone degeneration, or the cryo scars may inherently be faint and difficult to discern." Id. However, the examiner concluded with a negative nexus opinion. Id.

The Board acknowledges the multiple negative medical opinions of record.

However, the Board finds that an additional remand to obtain an addendum opinion would likely serve no benefit to the Veteran. The Board declines to remand this case again and further delay disposition of this appeal.

The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)).

The third VA examiner (November 2023) opined that it is at least plausible that the Veteran had a retinal tear injury in the left eye proximately caused by his in-service right orbital fracture, but that the symptoms of a later, non-service eye condition have made it too difficult to medically distinguish the original injury.

VA is required to apply the benefit of the doubt doctrine and attribute the inseparable effects of a non-service connected disability to the claimant's service-connected disability See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); See also Mittleider v. West, 11 Vet. App. 181, 182 (1998).

Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to service connection for a left eye condition as secondary to a service-connected right eye condition is hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

Earlier Effective Dates

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply to claims filed on or after March 24, 2015.

For the purpose of trying to find any entitlement to any earlier effective date for any ratings (not just prior to March 24, 2015), and in order to afford maximum consideration of the Veteran's claims, the Board will determine that these amendments do not apply. In other words, the Board will not deny a claim simply due to the Veteran or appellant using the incorrect form or other mere procedural defects.

The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000).

Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a).

The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the Veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id.

The word "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a).

To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

As of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary.

If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b).

In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause
complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b).

In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to... be paid under the laws administered by the Secretary.") The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998).

3. Entitlement to an effective date of January 10, 2009, but no earlier, for service connection for posttraumatic stress disorder with mixed anxiety and depressed mood with traumatic brain injury is granted.

The Veteran first filed a claim for service connection for a traumatic brain injury (TBI) in a claim form received by VA on January 10, 2009. See VA Form 21-526. This same form also listed the Veteran's claim for service connection for post-traumatic stress disorder (PTSD). Id.

The Veteran was awarded service connection in a November 2011 rating decision.

Originally this award for service connection was granted for the Veteran's PTSD with mixed anxiety and depressed mood, with the November 2011 rating decision simultaneously denying the Veteran's claim for a brain injury. See November 2011 Rating Decision.

However, the AOJ has since merged the Veteran's PTSD and TBI disabilities into one evaluation, explaining that "when a Veteran has a comorbid mental disorder or neurocognitive disorder in addition to a TBI, and the examiner is unable to delineate both the symptoms and the occupational and social impairment, a single evaluation under the diagnostic code that provides the higher evaluation based on overall impaired functioning due to both conditions will be assigned (38 CFR 4.126)." November 2024 Rating Decision.

Because the Veteran's PTSD and TBI disabilities have been merged into one disability evaluation, the effective date for this now singular disability has also merged. Id.

The November 2011 rating decision specifically assigned the Veteran the effective date of March 6, 2009-the date VA received the Veteran's VA Form 21-4138 (statement in support of claim). See March 2009 VA Form 21-4138.

It is unclear to the Board why the Veteran was assigned service connection effective the date his statement in support of claim was received by VA and not the date of receipt of his original claim, as the original January 2009 claim form clearly states, in relevant part, that the Veteran is seeking service connection for "PTSD" and for "a head injury."

In general, the effective date of an award based on an initial or supplemental claim of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110

Again, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000).

Here the Board can find no evidence to dispute that VA first received the Veteran's original claim for service connection on January 10, 2009.

Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to an effective date of January 10, 2009, but no earlier, for service connection for posttraumatic stress disorder with mixed anxiety and depressed mood with traumatic brain injury is hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

The Veteran is now in receipt of the earliest possible effective date for his claim.

4. Entitlement to an effective date of January 10, 2009, but no
in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to an effective date of January 10, 2009, but no earlier, for service connection for posttraumatic stress disorder with mixed anxiety and depressed mood with traumatic brain injury is hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

The Veteran is now in receipt of the earliest possible effective date for his claim.

4. Entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

5. Entitlement to an effective date of January 10, 2009, but no earlier, for the award of service connection for a headache disability associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

6. Entitlement to an effective date of January 10, 2009, but no earlier, for service connection for tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is granted.

The Veteran seeks an effective date earlier than June 24, 2015 for the awards of service connection for vertigo, for a headache disability, and for tinnitus.

The Veteran was assigned the effective date of June 24, 2015 for each of these disabilities in an August 2023 rating decision which explained that each of these three disabilities are associated with his PTSD with TBI disability. See August 2023 Rating Decision.

As explained above, the effective date of the Veteran's award of service connection for PTSD with TBI disability is January 10, 2009.

The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998).

A plain reading of 38 U.S.C. § 5101(a) would therefore dictate that regardless of whether a disability is associated with or secondary to another service-connected disability, the Veteran must still actually file a claim for that new disability in order to seek service connection.

Again, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993).

However, it is possible that medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established." See 38 C.F.R. §3.157(b)(1).

Here, as explained in the August 2023 rating decision, the AOJ awarded the Veteran service connection for headaches, for vertigo, and for tinnitus based on VA examinations conducted as part of the development of a claim filed by the Veteran and received by VA on June 24, 2015 regarding his TBI disability. See August 2023 Rating Decision; June 2015 VA Form 21-526EZ.

In other words, the AOJ inferred and then granted claims for service connection for these disabilities on the Veteran's behalf.

In this rating decision the AOJ determined that the Veteran's vertigo, headaches, and tinnitus disabilities are part and parcel of his original claim for service connection for TBI, and as such the effective date of service connection for these disabilities is the date VA received the Veteran's initial claim for service connection for his TBI disability. See August 2023 Rating Decision. These are findings favorable to the Veteran, and pursuant to the AMA, the Board is bound by previous findings of fact that are favorable to the Veteran. 38 C.F.R. §§ 3.104(c), 20.801.

The AOJ explained that the Veteran was awarded the effective date of June 24, 2015 for each of these three disabilities because the AOJ interpreted the Veteran's June
vertigo, headaches, and tinnitus disabilities are part and parcel of his original claim for service connection for TBI, and as such the effective date of service connection for these disabilities is the date VA received the Veteran's initial claim for service connection for his TBI disability. See August 2023 Rating Decision. These are findings favorable to the Veteran, and pursuant to the AMA, the Board is bound by previous findings of fact that are favorable to the Veteran. 38 C.F.R. §§ 3.104(c), 20.801.

The AOJ explained that the Veteran was awarded the effective date of June 24, 2015 for each of these three disabilities because the AOJ interpreted the Veteran's June 24, 2015 filing as the date of receipt of the Veteran's original claim for service connection for TBI. Id.

However, as explained in detail above, the Veteran first filed a claim for service connection for TBI in a claim received by VA on January 10, 2009.

The Board observes that the AOJ appears have identified the June 24, 2015 filing as the Veteran's first claim for service connection for TBI because this is the first filing that uses the phrase "traumatic brain injury" instead of the phrase "head injury" to define his claim.

In other words, there is no dispute that the correct effective date for the award of service connection for the Veteran's vertigo, headaches, and tinnitus disabilities is the date VA received the Veteran's initial claim for service connection for his traumatic brain injury.

Rather, the issue is that the AOJ has interpreted the Veteran's initial claim for service connection for a "head injury" to somehow be a claim for service connection for a different disability than a "traumatic brain injury." Here the Board points out that both the January 10, 2009 claim and the Veteran's March 6, 2009 statement in support of claim include the language "head injury with headaches" and descriptions by the Veteran of experiencing "dizziness" and "confusion" after his head injuries in service, which bolsters the interpretation of a claim for a head injury as a claim for traumatic brain injury.

In light of both Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) and the plain meaning of the English language, the Board interprets any claim for a "head injury," "traumatic brain injury," and "TBI" as a claim for the same disability.

The evidence therefore shows that the date the Veteran's initial claim filing for service connection for a brain injury was received by VA is January 10, 2009.

Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claims are at least approximately balanced; therefore, the claims for entitlement to an effective date of January 10, 2009, but no earlier, for the awards of service connection for; benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury; a headache disability associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury; and tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury are hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

The Veteran is now in receipt of the earliest possible effective date for these claims.

7. Entitlement to an effective date of January 10, 2009, but no earlier, for service connection for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is granted.

The Veteran first filed a claim for his right eye disability in a claim form received by VA on January 10, 2009. See VA Form 21-526.

The Veteran was granted service connection in a March 2011 Rating Decision which assigned the Veteran the effective date of January 14, 2009. See March 2011 Rating Decision.

As has been explained in detail, there is no dispute that the Veteran's original VA Form 21-526 was received by VA on January 10, 2009. This four-day discrepancy appears to be a typographical error which has carried over into the present.

Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to an effective date of January 10, 2009, but no earlier, for service connection service connection for right eye pseudophak
a March 2011 Rating Decision which assigned the Veteran the effective date of January 14, 2009. See March 2011 Rating Decision.

Resolving all doubt in the Veteran's favor, the Board therefore finds that the evidence both for and against his claim is at least approximately balanced; therefore, the claim for entitlement to an effective date of January 10, 2009, but no earlier, for service connection service connection for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is hereby GRANTED. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

The Veteran is now in receipt of the earliest possible effective date for his claim.

Increased Ratings

Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436 (2002).

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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).

The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

8. Entitlement to a disability rating of 30 percent, but no higher, for a headache disability is granted for the entire period on appeal.

The Veteran seeks a maximum 50 percent disability rating for his headache condition for the entire period on appeal.

As has been explained in detail above, the Veteran is considered to have first filed a claim for service connection for his headache disability in a claim received by VA on January 10, 2009. The effective date of the Veteran's headache disability is January 10, 2009.

Also as explained above, the Veteran was first granted service connection for his headache disability in an August 2023 rating
will be assigned. 38 C.F.R. § 4.7.

8. Entitlement to a disability rating of 30 percent, but no higher, for a headache disability is granted for the entire period on appeal.

The Veteran seeks a maximum 50 percent disability rating for his headache condition for the entire period on appeal.

Also as explained above, the Veteran was first granted service connection for his headache disability in an August 2023 rating decision.

The Veteran has continually pursued his claim for a higher disability rating since that rating decision was issued.

As such, the severity of the Veteran's headache disability will be considered during the entire period from the initial assignment of the disability rating on January 10, 2009 to the present time. Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran is currently in receipt of a 0 percent disability rating through June 22, 2023 and a 30 percent disability rating from June 22, 2023.

The issues in this appeal are therefore (1) whether the Veteran's headache disability warrants a rating in excess of 0 percent from January 10, 2009 through June 22, 2023; and (2) whether the Veteran's headache disability warrants a rating in excess of 30 percent from June 22, 2023 onwards.

The Veteran's headaches are rated pursuant to 38?C.F.R. §?4.124a, Diagnostic Code (DC) 8100, for migraines. Tension headaches and other forms of headaches are also rated under DC 8100.

Under DC 8100, a noncompensable rating (0 percent) is warranted for headaches with less frequent attacks.

A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.

A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months.

A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

A 50 percent rating is the highest schedular rating available under DC 8100.

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

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the Veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted).

The 50 percent rating criteria also requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18?Vet. App.?440, 445-46 (2004).

Finally, in rating headaches or migraines under DC 8100, the Board may not consider the amel
, protract." Id. (internal citation omitted).

Finally, in rating headaches or migraines under DC 8100, the Board may not consider the ameliorative (beneficial) effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The Veteran has received five VA examinations for either his headache disability specifically or for his TBI disability with discussion of his headache disability.

The first VA examiner found that the Veteran has daily or near daily headaches lasting for several hours at a time. See 2010 VA Examination.

The Board additionally notes that the Veteran attended a follow-up appointment one month after this first VA exam in which the provider noted a "correlation between the Veteran's anxiety and his headaches." August 2010 VA Treatment Record.

The second VA examiner noted that "the Veteran suffers from chronic tension headaches everyday." November 2020 VA Examination. The examiner noted the Veteran's symptom of "constant head pain" with headaches lasting for more than two days at a time, but concluded that the Veteran does not have characteristic prostrating and prolonged attacks productive of severe economic inadaptability. Id.

The third VA examiner conducted an exam focused on the Veteran's TBI but also noted that the Veteran "suffers from headaches everyday" and "mild memory loss" symptoms. April 2023 VA Examination. The examiner did not note any other headache symptoms.

The fourth VA examiner found that the Veteran does have characteristic prostrating and prolonged attacks productive of severe economic inadaptability. June 2023 VA Examination. The examiner added that these characteristic prostrating attacks happen once per month and that the Veteran has "completely" prostrating attacks once per month. Id. The examiner also indicated "yes" to the exam question regarding other pertinent symptoms of the Veteran's headache condition, noting that the Veteran's anxiety, pressured speech, sensitivity to light, sensitivity to sound, vision changes diarrhea, and fatigue. Id.

The fifth VA examiner also conducted an exam focused on the Veteran's TBI, but noted the Veteran's "daily" headaches and "mild memory loss." December 2023 VA Examination.

The Veteran mentioned experiencing daily or near daily headaches in his March 6, 2009 statement in support of claim.

The Veteran has also submitted a statement in support of his claim explaining that he gets headaches daily or nearly every day, that he can tell his headaches are triggered by stress and anxiety, and that he takes over the counter pain medication everyday for his headaches but that this "only helps a little." January 2020 Affidavit.

The Board can identity no other dispositive evidence of record regarding the Veteran's headache disability.

The Board emphasizes that the Veteran is competent to report his observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Court of Appeals for Veterans Claims has specifically recognized that subjective evidence of headaches and headache symptoms are competent lay evidence. Pierce v. Principi, 18 Vet. App. 440, 440 (U.S. 2004).

In summary, the competent medical evidence of record persuasively shows that the Veteran's headaches have manifested with symptoms and severity consistent with a 30 percent disability for the entire period on appeal, so since at least January 10, 2009. See generally Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (indicating that the effective date for an increased, initial, or staged rating is predicated on when the increase in the level of disability can be ascertained).

That said the Board cannot identify any evidence of record to suggest that the Veteran's symptoms have met the criteria for a maximum 50 percent rating. While the June 2023 VA examiner did find that the Veteran experiences characteristic prostrating attacks and completely prostrating attacks, these were identified as occurring on a once-monthly basis, but not more. As explained previously, prostrating attacks occurring on an average of once a month correspond with the 30 percent criteria, with "very frequent" prostrating attacks productive of severe economic inadapt
2015) (indicating that the effective date for an increased, initial, or staged rating is predicated on when the increase in the level of disability can be ascertained).

That said the Board cannot identify any evidence of record to suggest that the Veteran's symptoms have met the criteria for a maximum 50 percent rating. While the June 2023 VA examiner did find that the Veteran experiences characteristic prostrating attacks and completely prostrating attacks, these were identified as occurring on a once-monthly basis, but not more. As explained previously, prostrating attacks occurring on an average of once a month correspond with the 30 percent criteria, with "very frequent" prostrating attacks productive of severe economic inadaptability corresponding to the 50 percent criteria. Here, there simply is no evidence to suggest that the Veteran has experienced these symptoms at any time during the period on appeal.

In reaching this conclusion the Board has not considered any ameliorative (beneficial) effects of any medication prescription or over-the-counter medication the Veteran may be taking for his headaches. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

Thus, an increased rating of 30 percent, but no higher, for a headache disability is hereby GRANTED effective January 10, 2009. 38 C.F.R. §§ 3.400(a); 4.124a, DC 8100. Any further increase during the entire period on appeal is hereby DENIED.

The Veteran should no longer have a staged rating for his headache disability. The Veteran's disability rating for headaches should now be 30 percent, but no higher, for the entire period on appeal, i.e., from January 10, 2009 to present.

9. Entitlement to a rating in excess of 30 percent benign paroxysmal positional vertigo associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is denied.

The Veteran seeks a rating higher than 30 percent for benign paroxysmal

positional vertigo.

As has been explained in detail above, the Veteran is considered to have first filed a claim for service connection for his vertigo disability in a claim received by VA on January 10, 2009. The effective date of the Veteran's vertigo disability is January 10, 2009.

Also as explained above, the Veteran was first granted service connection for his vertigo disability in an August 2023 rating decision. This rating decision assigned the Veteran a 30 percent disability rating for the entire period on appeal.

The Veteran has continually pursued his claim for a higher disability rating since that rating decision was issued.

As such, the severity of the Veteran's vertigo disability will be considered during the entire period from the initial assignment of the disability rating on January 10, 2009 to the present time. Fenderson v. West, 12 Vet. App. 119 (1999).

Peripheral vestibular disorders, including vertigo, are assessed under 38 C.F.R. § 4.87, Diagnostic Code 6204.

A 10 percent rating is warranted for occasional dizziness.

A maximum 30 percent rating is warranted for dizziness and occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code 6204.

In other words, the Veteran is already in receipt of the maximum schedular rating for the entire period on appeal. Accordingly, the Veteran's appeal for a schedular rating in excess of 30 percent for benign paroxysmal

positional vertigo must be DENIED.

The Board has also considered whether extraschedular consideration is warranted, as the issue is reasonably raised by the Veteran's assertions in the record. While the Board cannot assign an extraschedular rating for a disability in the first instance, it can determine whether to refer a case to the VA Director of Compensation Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In determining whether referral for consideration of an extraschedular rating is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs when the rating criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Id. at 115.

If there is an exceptional or unusual disability picture, then the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extraschedular evaluation.

The Veteran has
. Peake, 22 Vet. App. 111, 115 (2008).

The Veteran has received a VA exam for vertigo. The Veteran described his vertigo symptoms to the examiner as dizziness that prevents him from running in a straight line, triggered by standing up and/or looking to the right, but without accompanying nausea. See July 2023 VA Examination.

In other words, the Veteran identified, and the VA examiner confirmed, that the Veteran's symptoms manifest as dizziness with occasional staggering-the exact symptoms contemplated by the rating criteria. The Board can identify no contentions or medical evidence of record to dispute this finding.

Therefore, the Veteran's vertigo disability does not present such an exceptional disability picture that the schedular evaluations are inadequate. Referral for extraschedular consideration is not warranted. Thun, 22 Vet. App. at 115. Put simply, the Veteran is already adequately compensated for his vertigo disability by receiving the 30 percent disability rating with which he is currently rated. Thus, the Veteran's appeal must hereby be DENIED.

10. Entitlement to a rating in excess of 10 percent for tinnitus associated with post-traumatic stress disorder with adjustment disorder, mixed anxiety and a depressed mood with traumatic brain injury is denied.

The Veteran seeks a rating higher than 10 percent for his tinnitus disability.

As has been explained in detail above, the Veteran is considered to have first filed a claim for service connection for his tinnitus disability in a claim received by VA on January 10, 2009. The effective date of the Veteran's tinnitus disability is January 10, 2009.

Also as explained above, the Veteran was first granted service connection for his tinnitus disability in an August 2023 rating decision. This rating decision assigned the Veteran a 10 percent disability rating for the entire period on appeal.

The Veteran has continually pursued his claim for a higher disability rating since that rating decision was issued.

As such, the severity of the Veteran's tinnitus disability will be considered during the entire period from the initial assignment of the disability rating on January 10, 2009 to the present time. Fenderson v. West, 12 Vet. App. 119 (1999).

Tinnitus is assessed under 38 C.F.R. § 4.87, Diagnostic Code 6260.

Under DC 6260, a 10 percent disability rating is warranted for tinnitus, regardless of whether it is unilateral or bilateral, or whether it is constant versus recurrent. 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for an extraschedular evaluation.

The Veteran has received a VA exam for tinnitus. The Veteran described his symptoms to the examiner as recurrent tinnitus in
whether referral for consideration of an extraschedular rating is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs when the rating criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Id. at 115.

The Veteran has received a VA exam for tinnitus. The Veteran described his symptoms to the examiner as recurrent tinnitus in both ears with "good days and bad days". See July 2023 VA Examination.

In other words, the Veteran identified, and the VA examiner confirmed, that the Veteran's symptoms match the rating criteria with no additional symptoms noted. The Board can identify no contentions or medical evidence of record to dispute this finding.

Therefore, the Veteran's tinnitus disability does not present such an exceptional disability picture that the schedular evaluations are inadequate. Referral for extraschedular consideration is not warranted. Thun, 22 Vet. App. at 115. Put simply, the Veteran is already adequately compensated for his tinnitus disability by receiving the 10 percent disability rating with which he is currently rated. Thus, the Veteran's appeal must hereby be DENIED.

11. Entitlement to an increased disability rating for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is denied for the entire period on appeal.

The Veteran seeks a rating higher than 10 percent for his right eye disability.

As explained above, the Veteran first filed a claim for his right eye disability in a claim received by VA on January 10, 2009. The Veteran's claim was granted in a March 2011 rating decision, assigning the Veteran a 0 percent (noncompensable) disability rating. The effective date of the Veteran's award for service connection is January 10, 2009.

No appeal, higher level review, or supplemental claim was filed within the year following this rating decision; no relevant records were associated with the file or within the constructive possession of VA. Therefore, the March 2011 rating decision is final.

The Veteran attempted to re-open his claim in a filing received by VA on March 20, 2013 (see March 2013 VA 21-526EZ) but then withdrew this claim. See October 2013 Correspondence.

The Veteran then filed a new claim received by VA June 24, 2015. See June 2015 VA Form 21-526EZ. The Veteran's claim for an increased rating was denied in a March 2016 rating decision. See March 2016 Rating Decision.

The Veteran reopened his claim in a supplemental claim filing received by VA on May 9, 2018, in which the Veteran opted in to the RAMP program for his claim review. See May 2018 VA Form 20-0995; May 2018 Correspondence.

The AOJ adjudicated the Veteran's supplemental claim for his right eye disability in a January 2019 rating decision which again denied the Veteran an increased rating. See January 2019 Rating Decision.

The Veteran timely filed a supplemental claim. See December 2019 VA Form 20-0995. The AOJ again denied the Veteran's claim in a March 2020 rating decision. See March 2020 Rating Decision.

The Veteran timely filed another supplemental claim in July 2020. See July 2020 VA Form 20-0995.

In response to the Veteran's July 2020 supplemental claim the AOJ issued an April 2021 rating decision which deferred adjudication pending a VA medical exam. See April 2021 Rating Decision.

The Veteran received his VA exam in January 2022. The AOJ issued then a March 2022 VA rating decision which increased the Veteran's disability rating to 10 percent, effective June 28, 2021. See March 2022 Rating Decision.

The AOJ explained that the Veteran was assigned this effective date for the increased rating because "this is the date we received your intent to file for your current claim for this condition and we received your formal claim within a year of this date." Id.

The Board notes that while VA did receive an intent to file (which did not specify
2021 rating decision which deferred adjudication pending a VA medical exam. See April 2021 Rating Decision.

The Board notes that while VA did receive an intent to file (which did not specify any issues) from the Veteran on June 28, 2021, the Veteran's claim for an increased rating for his right eye condition was actively pending before the AOJ at that time.

Given the procedural timeline as detailed above, the Board is unclear as to why the AOJ determined the effective date for the Veteran's increased rating to be June 28, 2021, as the Veteran has continuously pursued his claim for a higher rating since May 9, 2018. Regardless, the Veteran currently has a staged rating for this disability.

The Veteran has persisted in continually pursuing his claim for an increased rating for his right eye disability ever since the March 2022 rating decision.

The issues in this appeal are (1) whether the Veteran's right eye disability warrants a rating in excess of 0 percent from May 9, 2018 through June 28, 2021; and (2) whether the Veteran's right eye disability warrants a rating in excess of 10 percent from June 22, 2023 onwards.

The Board therefore finds the period on appeal stems from May 9, 2018, to include consideration of the one-year look back period, but no earlier. See 38 C.F.R. § 3.400 (o)(2).

The Veteran's eye disability is rated under the General Rating Formula for Diseases of the Eye (General Formula), 38?C.F.R. §?4.79, Diagnostic Codes (DC) 6027-6080.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Thus, in this case, the Veteran is rated under Diagnostic Code 6027 for cataracts in the right eye and on the basis of Diagnostic Code 6080 for visual field defects. 38 C.F.R. 4.79, Diagnostic Code 6027-6080.

The General Formula instructs that a Veteran's eye disability should be evaluated on the basis of either visual impairment due to the particular condition or on the basis of incapacitating episodes, whichever results in a higher evaluation.

Under the General Formula, a 10 percent disability rating is warranted for documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months.

A 20 percent disability rating is warranted for documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months.

A 40 percent disability rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months.

A maximum 60 percent disability rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months.

Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes.

Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions.

Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091.

The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75. Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. 38 C.F.R
; or other surgical interventions.

Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091.

Impairment of central visual acuity is evaluated on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76. Visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. § 4.79, DCs 6061 to 6066.

A 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or when corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.84a, DCs 6078, 6079; 38 C.F.R. § 4.79, DC 6066.

A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) if corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) if corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) if corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity of 20/70 in one eye and 20/50 in the other eye. 38 C.F.R. § 4.84a, DCs 6077, 6078; 38 C.F.R. § 4.79, DC 6066.

A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity in both eyes is 20/70; (2) corrected visual acuity in one eye is 20/100 and the other eye is 20/70; (3) corrected visual acuity in one eye is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity in one eye is 15/200 and 20/50 in the other eye; (5) corrected visual acuity in one eye is 10/200 and 20/40 in the other eye; (6) corrected visual acuity in one eye is 5/200 and 20/40 in the other eye; or (7) blindness of one eye and corrected vision to 20/40 in the other eye. 38 C.F.R. § 4.84a, DCs 6070, 6074, 6076, 6077, 6078; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or
38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076, 6078; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/100; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/100; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/100; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/100; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/100 or 20/70 or 20/100, respectively. 38 C.F.R. § 4.84a, DCs, 6065, 6069, 6073, 6076; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and the other eye is 20/200; (2) corrected visual acuity of one eye is to 15/200 and the other eye is to 20/200; (3) corrected visual acuity of one eye is to 10/200 and the other eye is to 20/200; (4) corrected visual acuity of one eye is to 5/200 and the other eye is to 20/200; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/200. 38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 15/200 and the other eye is 15/200; (2) corrected visual acuity of one eye is to 10/200 and the other eye is to 15/200; (3) corrected visual acuity of on eye is to 5/200 and the other eye is to 15/200; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 15/200. 38 C.F.R. § 4.84a
6064, 6065, 6066.

A 90 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 10/200 and the other eye is 10/200; (2) corrected visual acuity of one eye is to 5/200 and the other eye is to 10/200; or (3) blindness or anatomical loss of one eye and corrected vision in the other eye to 10/200. 38 C.F.R. § 4.84a, DCs 6064, 6068, 6072, 6075; 38 C.F.R. § 4.79, DCs 6064, 6065, 6066.

A 100 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 5/200 and the other eye is 5/200; (2) blindness or anatomical loss of one eye and corrected vision in the other eye to 5/200; or (3) blindness or anatomical loss of both eyes. 38 C.F.R. § 4.84a, DCs 6061, 6062, 6063, 6067, 6071; 38 C.F.R. § 4.79, DCs 6064 and 6065.

When only one eye is service connected, the other eye is considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75 (c). Generally, the maximum evaluation for visual impairment of one eye is 30 percent unless there is anatomical loss of one eye. 38 C.F.R. § 4.75 (d).

The evaluation for visual impairment may be combined with evaluations for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under Diagnostic Code 7800). Id. The exception to this 30 percent maximum rating is the paired organ rule which allows severe bilateral visual impairment to be rated as if both eyes were service connected. See 38 C.F.R. § 3.383 (a)(1). "Severe bilateral vision impairment" is visual acuity of 20/200 or less in both eyes or peripheral field of vision to 20 degrees or less in both eyes. See id.

The Veteran has received three VA vision exams during the period on appeal, in January 2020, in January 2022, and in November 2023.

The January 2020 VA examiner and the January 2022 VA examiner affirmatively indicated that the Veteran had not experienced any incapacitating episodes in the previous 12 months. The Boards finds that there is no medical evidence of record to indicate that the Veteran has experienced any incapacitating episodes during the period on appeal.

The January 2020 VA visual examiner found normal bilateral visual acuity and also found that the Veteran did not have a documented visual field defect. See January 2020 VA examination.

The January 2022 VA examiner also found normal bilateral visual acuity. See January 2022 VA Examination. However, this examiner additionally found that the Veteran has a documented visual field defect, specifically contraction of a visual field. Id.

Concentric contraction of a visual field is rated per the Ratings for Impairment of Visual Fields. 38 CFR § 4.79.

A remaining field of vision of 5 degrees warrants a 100 percent rating for bilateral or a 30 percent rating for unilateral, or each eye is evaluated as 5/200 per the General Formula.

A remaining field of vision of 6 to 15 degrees warrants a 70 percent rating for bilateral or a 20 percent rating for unilateral, or each eye
VA examiner also found normal bilateral visual acuity. See January 2022 VA Examination. However, this examiner additionally found that the Veteran has a documented visual field defect, specifically contraction of a visual field. Id.

Concentric contraction of a visual field is rated per the Ratings for Impairment of Visual Fields. 38 CFR § 4.79.

A remaining field of vision of 5 degrees warrants a 100 percent rating for bilateral or a 30 percent rating for unilateral, or each eye is evaluated as 5/200 per the General Formula.

A remaining field of vision of 6 to 15 degrees warrants a 70 percent rating for bilateral or a 20 percent rating for unilateral, or each eye is evaluated as 20/200 per the General Formula.

A remaining field of vision of 16 to 30 degrees warrants a 50 percent rating for bilateral or a 10 percent rating for unilateral, or each eye is evaluated as 20/100 per the General Formula.

A remaining field of vision of 31 to 45 degrees warrants a 30 percent rating for bilateral or a 10 percent rating for unilateral, or each eye is evaluated as 20/70 per the General Formula.

A remaining field of vision of 41 to 60 degrees warrants a 10 percent rating for bilateral or also a 10 percent rating for unilateral, or each eye is evaluated as 20/50 per the General Formula.

The January 2022 VA examiner found that the Veteran had unilateral concentric contraction of the right eye visual field with a remaining field of vision averaging 46.25 degrees, corresponding with the 10 percent disability rating the Veteran was awarded per the March 2022 Rating Decision. See January 2022 VA Examination; March 2022 Rating Decision.

The November 2023 VA examiner found normal bilateral visual acuity, and like, the January 2022 VA examiner, that the Veteran's right eye shows an average contraction to 46.25 degrees, which again corresponds to a 10 percent disability rating. See November 2023 VA Examination.

There are no other visual examinations of record for the time period on appeal.

In summary, there is no dispositive evidence of record to suggest that the Veteran has experienced a level of disability regarding his right eye condition that would exceed a 10 percent rating at any point during the period on appeal, to include consideration of the one year look back period. C.F.R. § 3.400 (o)(2).

Generally, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

As has been discussed previously, the period on appeal for this issue stems from May 9, 2018, to include consideration of the one-year look back period, but no earlier. See 38 C.F.R. § 3.400 (o)(2).

But while the date of claim is preserved when a claim is continuously pursued, the proper effective date for an increased rating is still subject to a finding regarding when entitlement to the benefit sought arose.

"The date entitlement arose" is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also DeLisio v. Shinseki, 25 Vet. App. 45, 52 (2011); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (noting that what matters when assessing the "facts found" is not the date an examination was conducted but the date the disability first manifested).

Here, the earliest evidence of record indicating a compensable disability rating for the Veteran's right eye condition is also the same date as the January 2022 VA examination.

However, pursuant to the AMA, the Board is bound by previous findings of fact that are favorable to the Veteran. 38 C.F.R. §§ 3.104(c), 20.801. Here, the AOJ has already made the favorable finding that the effective date for the Veteran's rating increase to a compensable rating for this right eye disability is June 28, 2021, which is of course earlier than the January 2022 VA examination, and the Board certainly not disturb this favorable finding.

Thus, the Veteran's claim for an increased rating for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is hereby DENIED for the entire period on
2022 VA examination.

Thus, the Veteran's claim for an increased rating for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is hereby DENIED for the entire period on appeal. 38 C.F.R. §§ 3.400(a); 4.79, Diagnostic Code 6027-6080.

The Veteran should still have a staged rating for his right eye disability. The Veteran's disability rating for right eye pseudophakia, chorioretinal scarring, and dry eye syndrome is still 0 percent from May 9, 2018 through June 28, 2021 and 10 percent from June 22, 2023 onwards.

(This space intentionally left blank. VLJ signature on next page.)

J.P. Norman

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jimenez, Christina

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.

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