Citation Nr: 0813302 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-29 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for chondromalacia patellae, left knee. 2. Entitlement to service connection for chondromalacia patellae, right knee. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an initial evaluation in excess of 30 percent for headaches. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and T.R. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2005 and April 2006 rating decisions by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for a bilateral knee disorder, hearing loss, and tinnitus, and established service connection for headaches with an initial evaluation of 10 percent. In a subsequent rating decision, the veteran's initial evaluation for headaches was increased to 30 percent. In March 2008, the veteran presented personal testimony during a travel board hearing before undersigned Veterans Law Judge. A transcript of the hearing is of record. As the veteran has perfected an appeal as to the initial evaluation assigned for headaches, the Board has characterized this issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson requires that the claim not be construed as a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) are not applicable to the present claim. The Board notes that in a January 2008 statement, the veteran appeared to initiate a claim for an increased rating for his cervical spine disorder. The Board refers this matter to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. The evidence of record does not demonstrate that a current left knee disorder developed as a result of an established event, injury, or disease during active service. 3. The evidence of record does not demonstrate that a current right knee disorder developed as a result of an established event, injury, or disease during active service. 4. The evidence of record does not demonstrate that hearing loss was manifest during active service or developed as a result of an established event, injury, or disease during active service. 5. The evidence of record does not demonstrate that tinnitus developed as a result of an established event, injury, or disease during active service. 6. Headaches are currently manifest by daily non- incapacitating headaches and severe headaches that occur on average once every two weeks that improve after about an hour. CONCLUSIONS OF LAW 1. A current left knee disorder was not incurred in or aggravated by service, nor may service incurrence of arthritis be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). 2. A current right knee disorder was not incurred in or aggravated by service, nor may service incurrence of arthritis be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). 3. Hearing loss was not incurred by service, nor may service incurrence of a sensorineural hearing loss be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). 4. Tinnitus was not incurred by service, nor may service incurrence of a sensorineural hearing loss be presumed. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303 (2007). 5. The criteria for entitlement to an initial evaluation in excess of 30 percent for headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in October 2004 and August 2005. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Although the veteran has not been provided with the VCAA requirements of the duty to assist and duty to notify as it pertains to the issue of increased rating, this claim is a downstream issue from the grant of service connection. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues, and that a Court decision suggesting otherwise was not binding precedent. VAOPGCPREC 8-2003, 69 Fed.Reg. 25180 (May 5, 2004); cf. Huston v. Principi, 17 Vet. App. 370 (2002). The Board is bound by the General Counsel's opinion. 38 U.S.C.A. § 7104 (West 2002). VAOPGCPREC 8-2003; 69 Fed.Reg. 25180 (May 5, 2004). While this logic is called into some question in a recent Court case, neither this case nor the GC opinion has been struck down. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, as discussed below information in the folder provides sufficient information to allow decision to be entered on the matters decided herein. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in a Statement of the Case issued in December 2007. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Law and Regulations-Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including arthritis and/or organic diseases of the nervous system (sensorineural hearing loss), become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Left and Right Knee Disorders Service treatment records reveal that in December 1975, the veteran complained of bilateral knee pain. X-rays were negative, and on physical examination, the knees were within normal limits. Bilateral tenderness under the medial patellar facets was noted, and the diagnosis was chondromalacia patellae. The veteran was placed on a physical profile and received physical therapy. A note from May 1976 indicates that the veteran reported no improvement. He stated that activity in his service job aggravated his condition. When examined in June 1976, no physical findings except patellar crepitus were noted. He was given a 90-day temporary physical profile for his knees. In November 1976, he received a 30-day temporary profile. In January 1977, it was noted that he had not been properly doing the quadriceps exercises that had been prescribed. On the January 1977 separation examination, normal lower extremities were noted. A VA treatment note from April 1977 indicated that the veteran wanted to get his knees checked. X-rays revealed normal right and left knees. A medical examination report upon entry to service in the National Guard dated in May 1978 shows normal lower extremities. The veteran indicated on his Report of Medical History upon entry to National Guard service that he did not have "trick" or locked knee. During a VA new patient exam in July 2003, the veteran reported involvement in two previous motor vehicle accidents. He complained of his right knee swelling at times. The examiner observed no edema, gross muscle atrophy, or abnormalities. On VA examination in February 2006, the veteran reported falling on concrete and having a lot of trouble with his knees while on active duty. There was no evidence of treatment for his knees between his discharge in 1977 and 2003. The examiner noted that there were no constitutional symptoms or incapacitating episodes of arthritis. While no deformity was observed, it was noted that both knees would give way. Additionally, instability, pain, and stiffness were observed in both knees. The examiner noted no inflammatory arthritis or ankylosis. It was summarized that there was no crepitation, no clicks or snaps, no grinding, no instability, no patellar abnormality, no meniscus abnormality, and no other abnormality in either knee. An X- ray revealed no fracture, dislocation or joint effusion, and the joint spaces were preserved with no discrete abnormality. The examiner opined that the veteran had bilateral knee pain and mild osteoarthritis. During the veteran's personal hearing before the undersigned Veterans Law Judge in March 2008, the veteran reported that both of his kneecaps were dislocated when he was on active duty, but everything showed no positive injuries. He related that after leaving the service, he went to the Beckley VAMC where they took X-rays and found nothing wrong with his knees. He said that at the time he was in a lot of pain, and he went to see Dr. M. He tried to get medical records from Dr. M., but he was told that the records had been destroyed. He also indicated that he had received treatment from a certified medical practitioner at the Family Clinic at Beckley, and she treated his whole body for arthritis. He stated that he did not recall being evaluated immediately prior to entering the National Guard. He additionally indicated that he did not seek treatment for his knee pain for many years because he could not afford treatment. Based on the evidence of record, the Board finds that the veteran's claimed current left and right knee disorders are not a result of an established event, injury, or disease during active service. While the service treatment records document the in-service diagnosis of chondromalacia patellae in both knees, the disorder appeared to resolve itself. The service separation exam indicated that the veteran had normal lower extremities, and an X-ray from April 1977 revealed no abnormalities. While the veteran reported in his personal hearing that he did not recall being examined before entering the National Guard in May 1978, a copy of the examination report is of record. The National Guard entry examination also indicated that the veteran had normal lower extremities. Additionally, the Board notes that the veteran stated in his Report of Medical History upon entry to the National Guard that he did not have a knee problem. The Board finds the aforementioned evidence persuasive that the veteran's in- service knee disorder was acute and resolved by the time he left active duty. The Board notes that the first medical evidence of record of knee complaints after the veteran left the service is dated in July 2003-26 years after he left active duty. The passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Also, the Board finds the February 2006 VA examination persuasive evidence that the veteran does not have a left or right knee disorder that is a result of any established in- service event. The examiner reviewed the claims file and commented on the space of time between the veteran's active duty and reports of knee pain in 2003. The examination report indicates that the veteran's knees exhibited no crepitation, no clicks or snaps, no grinding, no instability, no patellar abnormality, no meniscus abnormality, and no other abnormality. Although the February 2006 VA examiner listed a diagnosis of mild osteoarthritis, a contemporaneous X-ray revealed no abnormalities. X-rays have not established the presence of arthritis in either knee, and the evidence of record does not show a medical diagnosis of another left or right knee disorder. As there is no evidence of a present medical disorder and a medical nexus between that disorder and an injury that was incurred during active service, service connection cannot be granted. It appears from the veteran's testimony and available medical evidence that his claimed bilateral knee disorder consists primarily of pain. The Board has carefully considered the veteran's reports of bilateral knee pain and finds them to be competent evidence of his current symptoms. However, the Court has stated in Clyburn v. West, 12 Vet. App. 296, 301 (1999), that continued complaints of pain after service do not suffice to establish a medical nexus, where the issue at hand is of etiology, and requires medical opinion evidence. Pain cannot be compensable in the absence of proof of an in- service disease or injury to which the current pain can be connected by medical evidence. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, he cannot provide a competent opinion regarding diagnosis and causation. The Board has considered whether service connection for a left or right knee disorder could be established on a presumptive basis. To establish service connection for a disability on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, no medical evidence demonstrates that the veteran experienced a left or right knee disability to a compensable level within a year after his discharge from active duty. April 1977 X-rays revealed normal knees. The May 1978 National Guard enlistment physical report shows normal lower extremities. Therefore, service connection for a left and right knee disorder cannot be established on a presumptive basis. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Hearing Loss and Tinnitus A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2007). Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet. App. 155 (1993). Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active service. Id. at 158. It was indicated on the veteran's DD Form 214 that his military occupational specialty (MOS) was armor crewman. At the time of the veteran's enlistment physical examination, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 -- 5 LEFT 20 15 15 -- 5 A service audiogram from September 1976 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 10 10 5 5 10 Both ear drums were noted to be normal, and the veteran reported that he did not experience tinnitus or dizziness. Additionally, it was observed that the veteran did not have a noisy job or noisy hobbies. A service treatment record from October 1976 states that the veteran had been flying previously and could not relieve the pressure in his ears. The examiner removed a small impaction of cerumen and gave a diagnosis of otitis media. Two days later, he reported a constant ringing in his ears. Otitis media was diagnosed. During the January 1977 separation physical, the examiner noted normal ears. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 0 0 LEFT 10 10 5 5 10 A medical examination report upon entry to service in the National Guard dated in May 1978 shows normal ears. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 10 10 5 5 15 The veteran indicated on his Report of Medical History upon entry to National Guard service that he had previously experienced ear, nose, or throat trouble. During a VA new patient examination in July 2003, the veteran complained of occasional tinnitus. He was employed by VA as an elevator mechanic. He denied deafness or hearing loss, otalgia or otorrhea. The examiner noted patent, clear, and intact tympanic membranes. On VA audiological examination in February 2006, the veteran reported that he had been a coal miner for five years, and he was not required to wear hearing protection. He said that it was noisy at times. He also reported working as an electrician for 20 years, and there was not much noise when he was doing wiring. He also hunted deer previously. It was noted that he experienced constant, loud, high pitched bilateral tinnitus. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 15 10 15 25 16 LEFT 10 25 40 40 29 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. After discussing the claims file and the veteran's history, the examiner concluded that the veteran's hearing loss and tinnitus was not at least as likely as not caused by his active service in the military. During the veteran's personal hearing before the undersigned Veterans Law Judge in March 2008, the veteran reported that while on ROTC training, he was blown off a tank an experienced ringing in his ears for several days. He recounted that while serving in Korea, he was exposed to hand grenade explosions while on the range. He also indicated that while working on an airplane flight deck on active duty, he ears swelled full of fluid, and he couldn't hear anything. He said that while working as an electrician, he was not exposed to a great deal of noise. T.R., a friend of the veteran, testified that a couple of times a week their television seemed to be abnormally loud or the veteran couldn't hear her. She indicated essentially that the veteran's hearing had decreased over the years. Based upon the evidence of record, the Board finds the veteran's hearing loss and tinnitus were not incurred as a result of an established event, injury, or disease during active service. In this matter, the Board finds the February 2006 VA examiner's opinion persuasive. The examiner reviewed the claims file, thoroughly interviewed the veteran, and performed all necessary tests. Additionally, the examiner specifically commented on individual events present throughout the veteran's military and medical history. The examiner opined that it was not as likely as not that the veteran's hearing loss and tinnitus were related to military service. Without competent medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury, service connection cannot be granted. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board has considered whether service connection for hearing loss and tinnitus could be established on a presumptive basis. To establish service connection for a disability on a presumptive basis, the disability must manifest itself to a compensable degree within one year of the veteran leaving active duty. See 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, no medical evidence demonstrates that the veteran experienced hearing loss to a compensable level within a year after his discharge from active duty. Therefore, service connection for hearing loss cannot be established on a presumptive basis. Finally, recent testing of the veteran's hearing establishes that for VA compensation purposes, the veteran does not presently have a hearing loss as defined in 38 C.F.R. § 3.385. The Board has carefully considered the veteran's statements alleging that his hearing loss and tinnitus were caused by his active duty service. While he may sincerely believe that he has tinnitus and hearing loss as a result of service, he is not a licensed medical practitioner and is not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Law and Regulations-Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). 8100 Migraine: Ratin g With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 With characteristic prostrating attacks occurring on an average once a month over last several months 30 With characteristic prostrating attacks averaging one in 2 months over last several months 10 With less frequent attacks 0 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). Headaches Service treatment records show that in May 1974, the veteran complained of recurring headaches. In June 1974, he reported being kicked in the head by a drill sergeant three months previously. He said that he experienced headaches since that time. The examiner noted tension headaches in the occipital area. A treatment record from October 1974 states that the veteran said his headaches began in the back of his neck and spread to his head and face. He said that aspirin did not help. The examiner observed no visual or neurological symptoms and opined that the veteran had headaches as a result of anxiety and stress. On the January 1977 separation examination, the examiner noted a normal head. A medical examination report upon entry to service in the National Guard dated in May 1978 shows a normal head. The veteran indicated on his Report of Medical History upon entry to National Guard service that he did not have frequent or severe headaches. The veteran's claim for service connection for headaches was received in February 2005. A VA treatment record from July 2003 indicates that the veteran complained of frequent headaches. On VA examination in February 2006, the veteran reported that he had headaches after a head injury in basic training. He said he experienced daily headaches, and his daily headaches were lesser than other headaches he experienced. He stated that he experienced more severe headaches with certain motions and positions. He indicated that he had severe headaches once every two weeks. Lying down for 30 minutes would improve his severe headaches. It was noted that he did not describe nausea, vomiting, or photophobia. He said that the headaches would start at the right nuchal ridge and then radiate to the right eye and down his neck. The examiner observed that there were no records of continuing treatment for headaches between 1977 and 2003. The examiner opined that the veteran's current headaches were related to a cervical spine injury. He also opined that the veteran only experienced a significant effect on his daily activities with his most severe headaches, which by the veteran's account occurred on average of once every two weeks. He noted that the daily headaches were not incapacitating. Service connection for headaches was granted effective in February 2005, and a 10 percent rating was assigned. After undergoing surgery at a VA hospital in December 2007, the veteran reported a headache. The treatment note indicated that the headache resolved in about an hour. During the veteran's personal hearing before the undersigned Veterans Law Judge in March 2008, the veteran reported that frequently his headaches caused him to stop what he was doing at least three or four times a week. He said that they would ease up after three, four, or five hours. He also said that pain relievers no longer assisted him with his headaches. Based on the evidence of record, the Board finds that at all times throughout the period of appeal, the veteran's headaches have been manifest by daily non-incapacitating headaches and severe headaches that occur on average once every two weeks. In this matter, the Board finds the VA examination of February 2006 persuasive. The examiner reviewed the claims file and performed all necessary tests. He specifically stated that the veteran's daily headaches were not incapacitating, and the severe headaches occurred on average of once every two weeks. Without competent medical evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a rating in excess of 30 percent cannot be granted. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. While the February 2006 VA examiner indicated that the veteran's headaches had a significant effect on the veteran's activities, he specified that the interference was only present with the most severe headaches. He noted that the chronic daily headaches were not incapacitating. The Board notes that pain and some degree of interference with employment is taken account in the regular rating schedule. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to an initial evaluation in excess of 30 percent for service-connected headaches is denied. Entitlement to service connection for chondromalacia patellae, left knee is denied. Entitlement to service connection for chondromalacia patellae, right knee is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs