Citation Nr: 0919998 Decision Date: 05/29/09 Archive Date: 06/08/09 DOCKET NO. 05-00 161A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating for migraine headaches in excess of 30 percent effective from November 13, 2002, through February 20, 2005; in excess of 50 percent effective from February 21, 2005; and in excess of 50 percent effective from October 13, 2006. 2. Entitlement to an initial rating in excess of zero percent for medial cruciate ligament reconstruction of the left knee (left knee disorder) effective from November 13, 2002 through October 25, 2006; an in excess of 10 percent for that disorder effective from October 26, 2006. 3. Entitlement to an initial rating in excess of zero percent for medial cruciate ligament reconstruction of the right knee (right knee disorder) effective from November 13, 2002. 4. Entitlement to service connection for residuals of septorhinoplasty. 5. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteranhad active service from April 1993 to November 2002. She had undergone Medical Evaluation Board proceedings, and received Disability Severance Pay in the amount of $40,602, as shown on her DD Form 214 The appeal comes before the Board of Veterans' Appeals (Board) from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which in pertinent part granted service connection, with a noncompensable initial rating, for migraine headaches; and granted service connection, with initial noncompensable ratings, for left and right medial cruciate ligament reconstructions. In a September 2003 notice of disagreement with the June 2003 rating decision, the Veteran requested Decision Review Officer (DRO) review of her claims on appeal, prior to Board adjudication, under 38 CFR § 3.2600 (2008). DRO review was afforded the Veteran, as documented in a March 2004 Statement of the Case (SOC). By a March 2004 rating action, associated with that SOC, the RO in Oakland, California, granted a higher initial evaluation for migraine headaches of 30 percent, effective from November 13, 2002. Following the Veteran's change of her State of residence to Texas, the RO in Waco, Texas, by a November 2006 decision, granted a higher initial evaluation for migraine headaches, to 50 percent, effective from February 21, 2005. Also by that decision, that RO granted TDIU, effective October 13, 2006. By an August 2007 rating action, the Waco RO granted a higher initial evaluation of 10 percent effective from October 26, 2006, for the Veteran's left knee disorder. The issues of entitlement to a higher initial rating for a right knee disorder, and entitlement to service connection for residuals of septorhinoplasty and for chronic sinusitis, are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notice when further action by the appellant is required. FINDINGS OF FACT 1. For the rating period from November 13, 2002, through February 20, 2005, the Veteran's migraine headaches did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, nor did they result in marked interference with employment or other special effects of disability not reflected in the regular schedular rating standards. 2. For the rating period beginning on February 21, 2005, the Veteran's migraine headaches did not result in marked interference with employment or other special effects of disability not reflected in the regular schedular rating standards. 3. For the rating period from November 13, 2002, through October 25, 2006, the Veteran's left knee disorder, including consideration of such factors as pain, pain on undertaking motion, fatigue or loss of endurance, loss of strength, and incoordination, did not result in disability equivalent to limitation of flexion to less than 60 degrees. 4. For the rating period beginning on October 26, 2006, the Veteran's left knee disorder, including consideration of such factors as pain, pain on undertaking motion, fatigue or loss of endurance, loss of strength, and incoordination, has not resulted in disability equivalent to flexion limited to less than 45 degrees. CONCLUSIONS OF LAW 1. For the rating period from November 13, 2002, through February 20, 2005, the criteria for a rating above the 30 percent assigned for migraine headaches are not met, and extraschedular consideration for migraine headaches is not warranted for that time period. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321(b), 4.124a, Diagnostic Code 8100 (2008). 2. For the rating period beginning on February 21, 2005, the criteria for a rating above the 50 percent assigned for migraine headaches are not met, and extraschedular consideration for migraine headaches is not warranted for that time period. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321(b), 4.124a, Diagnostic Code 8100 (2008). 3. For the rating period from November 13, 2002, through October 25, 2006, the criteria for a rating above the zero percent assigned for a left knee disorder are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. § 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2008). 4. For the rating period beginning on October 26, 2006, the criteria for a rating above the 10 percent assigned for a left knee disorder are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. § 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in an SOC or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of a decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, No. 07-1209 (S. Ct. April 21, 2009). The Board finds that all notification and development action needed to render a decision on the Veteran's claims on appeal herein adjudicated have been accomplished. VCAA notice is not required with respect to every issue raised by a claimant. If, for example, a veteran files a claim for service connection for a disability, she is provided with VCAA notice as to that claim, the claim is granted, and she files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of her entitlement to a higher (initial) rating and/or an earlier effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006) (holding that, when a claim for service connection has been proven, the purpose of 38 U.S.C.A. § 5103(a) has been satisfied and the requirement of notice under its provisions has been satisfied). Here, the Veteran's appealed claims for higher initial ratings - for service-connected left medial cruciate ligament reconstruction, and for service-connected migraine headaches - fall squarely within the pattern above. Thus, no additional VCAA notice was required with respect to the appealed issues. Furthermore, in the course of appeal, following the Veteran's notice of disagreement (NOD) with the appealed June 2003 rating action granting service connection for these disabilities, the RO issued a VCAA letter in October 2006 addressing the claim for a higher initial evaluation for migraine headaches, as well as addressing an associated claim for TDIU. TDIU was subsequently granted by a November 2006 rating action. A February 2008 VCAA letter addressed both the migraine headaches initial rating claim and the left knee disorder initial rating claim. Therein, the Veteran was informed of the notice and duty-to-assist provisions of the VCAA, and was informed of the information and evidence necessary to substantiate the claims for higher initial ratings, and this notice was prior to readjudication of the claims by a SSOCs in July 2008 and March 2009. The February 2008 notice letter told the Veteran that it was ultimately her responsibility to see that pertinent evidence not in Federal possession was obtained. The Board further finds that the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, and associated all records obtained with the claims folders. Service treatment records were also obtained and associated with the claims file. The RO also informed the Veteran including by the appealed rating action and subsequent rating action, by SOC, and by SSOCs, of records obtained, and thus by implication of records not obtained, in furtherance of her claims. No further statement has been received by the Veteran indicating the existence of additional pertinent evidence not requested. Records of post-service employers were appropriately requested, and obtained records associated with the claims folders, as discussed infra. The case presents no reasonable possibility that additional evidentiary requests would further the appealed claims. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. In short, in this case, with regard to the initial rating claims herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the initial ratings assigned for periods beginning November 13, 2002, for these two appealed initial rating claims. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). VA examinations for compensation purposes have been conducted over the course of the appeal period, addressing both the Veteran's migraine headaches and her left knee disorder, as discussed in detail infra. Those examinations, taken together with records of VA, private, and service treatment, as well as other evidence of record, are adequate for the Board's adjudication herein. The Veteran was duly afforded the opportunity to produce additional evidence to support her claims. Thus, the Board determines that the evidentiary record is adequate, and the only significant medical question remaining pertaining to the Veteran's claims for higher initial ratings - that of objective or corroborating evidence of greater disability - was in this case, based on development already undertaken, the responsibility of the Veteran. A remand for a further examination would not present a reasonable possibility of affording a better picture of the nature and severity of the claimed disorders over the rating period, because adequate examinations have already been performed without objective findings of greater severity of disability being discovered. See 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition"). Moreover, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice, and any presumption of error as to the first element of VCAA notice has been rebutted in this case. See Shinseki v. Sanders, supra. In sum, the Board concludes that all required notice and development assistance has been afforded to the appellant. II. Law Governing Increased Rating Claims Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. Part 4 (2008). When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2008). These ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § § 4.1, 4.10. Medical evidence is generally required to establish a medical diagnosis or to address other medical questions, and lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, No. 2008-7096 (Fed. Cir. March 3, 2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). Here, the Board has duly considered the Veteran's lay statements, including as presented in submitted statements and statements noted in reports of medical treatment and examination. While the Veteran's asserted symptoms of migraine headaches, or of pain or sensation-related symptoms of knee disability, may be to some degree inherently subjective, the Board looks to the Veteran's statements as supported by more objective indicia of disability, including observable signs and symptoms of disease, laboratory tests, and the presence or absence of further objective signs of impairment, such as impaired ambulation or loss of work, or other findings and conclusions of medical treatment professionals and examiners. This focus on objective evidence is particularly relevant where, as here, the Veteran's credibility has been substantially impeached, as discussed infra. III. Migraine Headaches Initial Rating Claim A. Factual Background Upon an April 2003 VA dental/oral examination for compensation purposes, the examiner, reviewing the claims file, noted that the Veteran began experiencing migraine headaches in 1993 and sought treatment for these on an emergency basis on multiple occasions throughout her service. The Veteran asserted that her orthodontic surgery and treatment in service significantly reduced the frequency and intensity of her migraine headaches, reporting that this frequency reduced from two to three times per week to twice per month. The examiner noted that the Veteran took medication for her migraines, with some benefit. The examination was for dental/oral purposes, with neither findings nor an evaluation specific to the Veteran's migraines. Upon an April 2003 VA neurological examination for her migraines, the Veteran reported having no flare-ups of her headaches, and treating them with medication with very good response. She reported having headaches at times twice per month, but that the headaches were non-prostrating and that she was able to continue her activities. The examiner assessed vascular headaches of a migraine type, treated by medication with very good response. The Veteran was granted service connection for her migraine headaches by the appealed June 2003 rating action, with a noncompensable rating assigned. In a September 2003 submission - shortly after her submission, also in September 2003, of an NOD as to the initial rating assigned for her migraine headaches - the Veteran provided self-made charts detailing days of incidence of severe and non-severe migraine headaches, as follows: February 2003, 17 days severe and 6 days non-severe; March 2003, 16 days severe and 10 days non-severe; April 2003, 18 days severe and 9 days non-severe; (copies of charts submitted for total number of severe and non-severe days for May and June of 2003 are not legible); July 2003, 19 days severe and 7 days non-severe; August 2003, 19 days severe and 7 days non-severe; September 2003, 10 days severe and 5 days non-severe; (October 2003 chart provided but not completed). She provided further charts for August and September of 2003, and in these she indicated the 19 days severe headaches and 7 days non-severe headaches for August 2003, but 12 days severe headaches and 8 days non-severe headaches for September 2003. With these charts she provided her own key, stating that her non-severe migraines produced headache and mild nausea, but not light sensitivity, but that these milder migraines would lead to severe migraines "many times." She stated that the severe migraines produced light and sound sensitivity, nausea with vomiting, vertigo, involuntary crying, and flashing spots interfering with her central vision. She added that treatment for her severe migraines consisted of emergency room visits, isolation from light and sound, and medications. In October 2003 the Veteran was seen at a VA facility complaining of migraines and right shoulder pain, and seeking medication refills. The examiner noted no symptoms of migraine, but did identify probable tenosynovitis in the right shoulder. In November 2003 she was seen again complaining of migraine. At a December 2003 VA examination for compensation purposes, the examiner noted complaints of two kinds of headaches: a mild headache present almost daily or continuously present, and treated with Tylenol; and a pain behind the eyes associated with photophobia, sound sensitivity, and nausea, present 20 days per month, and treated with other medications. Beyond noting that the Veteran was "obviously depressed," the examiner found the Veteran to be neurologically normal upon examination. Testing for respiratory function for compensation purposes, also conducted in December 2003, was notable for poor effort. The December 2003 VA examiner for respiratory disorders for compensation purposes opined that there was "a major amount of psychological overlay in this patient." In particular, the respiratory examiner noted, in effect, that while she complained of severe asthma symptoms, these would not be present with clear lungs and normal breath sounds. That examiner also assessed that while she reported having 20 headaches per month that were asserted to be prostrating, they were more likely muscular tension headaches. Also of note, upon VA psychiatric examination for compensation purposes in December 2003, the Veteran's mood was noted to be euthymic, and no mental disorder was found, presenting a profile contrary to that found by the December 2003 VA neurological examiner. In January 2005 the Veteran presented to VA with complaints of respiratory infection and migraine. She complained of having a productive cough and a 102 degree fever at home. She reported being seen outside an emergency room two days earlier, and then being told she had the flu and given Tamiflu. No neurological findings associated with migraine headaches were noted. Tracheobronchitis was assessed. In the January 2005 statement, regarding her migraine headaches, she reported that they had significantly increased in the past seven months, adding that they could not be "controlled or prevented," and that she had also run out of prescription medications. She asserted that her migraines produced nausea and bright flashes of light that incapacitated her for hours. She emphasized that prescribed medications would not necessarily relieve the migraines, and that the medications would cause her to sleep for half the day. She also provided calendar charts indicating that in July 2004 she had 16 days of severe migraines and 12 days of non-severe migraines, that in August 2004 she had 12 days of severe migraines and 8 days of non-severe migraines, and that in September 2004 she had 17 days of severe migraine and no days of non-severe migraines. With these calendar charts she again provided her own key indicating that her non-severe migraines produced headache but not light sensitivity, and mild nausea, but that these would lead to severe migraines on most occasions. She indicated that the severe migraines produced light and sound sensitivity, nausea with vomiting, vertigo, involuntary crying, and flashing spots interfering with her central vision. She added that treatment for her severe migraines consisted of emergency room visits, isolation from light and sound, and medications. The claims file contains a copy of a March 16, 2005, record of an emergency room visit with United Regional Healthcare System. That record notes the Veteran's complaint of a motor vehicle collision one year earlier, and current complaints of migraine and back pain. The associated treatment records notes that she presented with left neck pain, lower back pain, and headache pain. The treating physician assessed migraine headache, neck pain, and back pain. She was treated with medication and discharged later the same day. At a February 2006 record of VA treatment for a skin condition, the Veteran reported improvement in her lesser migraine headaches with medication, though still getting major headaches "periodically." At an April 2006 VA neurological examination for compensation purposes, the Veteran reported that she had headaches 25 out of every 30 days, and that 13 of these days she had severe and prostrating headaches, with approximately three times per months her headaches being so severe that she must call a relative to come and watch her child. She added that she missed approximately 40 hours per month from work due to her headaches. She described taking various medications for her headaches which had a limited effect on symptoms. She reported that her headaches would last anywhere from several hours to all day, and that they typically began at four in the morning and grew progressively worse. She added that the headaches interfered with her sleep, so that she typically got four hours of sleep per night. The April 2006 VA examiner noted that the Veteran was in no apparent distress, and the examiner noted no ocular abnormalities. Aural and neurological examinations were also not noted to produce abnormal findings. The examiner assessed migraine headaches that were prostrating in nature. At a June 2006 VA social worker visit, the Veteran reported missing work due to her migraine headaches and other personal issues. The social worker noted that the Veteran was present to address issues related to anger and dealing with others. In a June 2006 VA social worker visit record, the social worker noted that service treatment records reflected that the Veteran had depression and was narcissistic. Also in 2006, the Veteran submitted a color-coded calendar indicating migraine headache frequency over the months of January through April of 2006. These showed 25 migraine headache days in January, 22 migraine headache days in February, and 9 migraine headache days through the eleventh of April. However, while the Veteran provided a color coding key for severity of facial pain (which was also noted on these calendar charts), she neglected to do so for migraine headaches. She submitted further calendar migraine headache charts in October 2006, but these were in grey scale, and hence while a color coding was included with these, the coding, corresponding to severe, moderate, or mild migraines, cannot be read from the charts provided. These charts submitted in October 2006 notably include 25 migraine days in January 2006, 23 migraine days in February 2006, 22 migraine days in March 2006, 23 migraine days in April 2006, 23 migraine days in May 2006, 21 migraine days in June 2006, 22 migraine days in July 2006, 23 migraine days in August 2006, 20 migraine days in September 2006, and 12 migraine days through the middle of October 2006. In a lengthy statement submitted in October 2006, the Veteran addressed several claimed disabilities. She asserted that she missed significant work or was incapacitated due to allergy-induced migraines, but also described significant incapacity related to sinus infections. She asserted that severe migraines such as those she experienced produced light and sound sensitivity, nausea and vomiting, vertigo, involuntary crying, painful light flashes that obstructed central visual acuity or her blurred vision, and "[i]ntense pain that can make me bash my head against anything I can find." She asserted that she had approximately 20 migraine headaches per month, 14 of which were severe and required medications which "sedate" her to treat her migraines. She added that severe migraines would cause her to be incapacitated for up to 10 hours. At an October 2006 VA general examination for compensation purposes, the Veteran reported having 19 headaches per month, 15 of which were severe, including resulting in dizziness, projectile vomiting, and needing to lie down. She described other symptoms associated with her migraines, including bright lights interfering with vision in her left eye, dizziness, and projectile vomiting. She noted that her migraines lasted from two to twelve hours, and described her migraines as being triggered by a variety of intensities and contrasts in light. The examiner found no neurological deficits associated with her migraine headaches, and assessed migraine with aura. The examiner noted that the Veteran's migraine headache would limit her ability to work in her former occupation as a secretary when they occurred, but would not when they were not present. The claims file contains a March 2008 record of the Veteran's request for a letter to be eligible to work on a part-time basis. The Veteran was provided such a note from a VA staff physician in March 2008. The Veteran in a telephonic contact with VA in November 2008, informed that she was currently in school and was not working at all. At a February 2009 neurological examination, she reported a frequency of six to seven severe headaches per month, and mild headaches ten times per month. That examiner assessed that the Veteran had migraine headaches but with good response to Zomig. However, that examiner failed to address the duration of her severe migraine episodes, and failed to address the degree to which they resulted in impairment of activities, including work-like activity. B. Analysis Under applicable criteria, where migraine headaches are manifested by characteristic prostrating attacks occurring on average once a month over the last several months, a 30 percent evaluation is assigned. Where manifested by very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability, a 50 percent evaluation is assigned. Fifty percent is the highest schedular rating for migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2008). The RO granted the Veteran a 30 percent evaluation for her migraine headaches effective from November 13, 2002, the day following the date of her separation from service. The RO granted her a 50 percent evaluation for her migraine headaches effective from February 21, 2005, purportedly based on her having presented to a United Regional Healthcare System emergency room on that date complaining of severe and prostrating migraine headache. However, a careful review of the claims file reveals that there is no treatment of that date of record. Rather, a record of an United Regional Healthcare System emergency room visit dated March 16, 2005, as detailed supra, lists the date of February 21, 2005, as the date of her last menstrual period ("Date of LMP"). Further, "severe and prostrating" headaches are nowhere noted in that record. The RO granted the Veteran TDIU effective from October 13, 2006, primarily on the basis of her asserted incapacitating migraine headache episodes, but also based on her service- connected asthma, rated 30 percent disabling effective from November 13, 2002; apertognathia, also rated 10 percent disabling effective November 13, 2002; left medial cruciate ligament reconstruction, rated zero percent disabling effective November 13, 2002; and right medial cruciate ligament reconstruction, also rated zero percent disabling effective November 13, 2002. The RO granted TDIU by a November 2006 rating action. (It was not until an August 2007 rating decision that the RO granted a 10 percent evaluation for the Veteran's left medial cruciate ligament reconstruction, effective from October 26, 2006. (The RO never issued a decision granting an increased evaluation for the right knee disorder to 10 percent disabling, although the July 2008 SSOC implicitly assumed that grant of an increased evaluation. The right knee higher initial rating claim is the subject of Remand, below.) Thus, at issue for the Veteran's claimed migraine headaches is whether a higher disability rating is warranted than the 30 percent initially assigned effective from November 13, 2002, through October 12, 2006; whether a higher disability rating is warranted than the 50 percent assigned from February 21, 2005; and whether a higher disability rating is warranted than the 50 percent assigned from October 13, 2006. The Board notes that, notwithstanding the records of treatment and examination, the presence of migraines and their frequency in this case are inherently subjective, which is to say their frequency and severity are generally not supported by objective medical findings within the claims folders and are generally not corroborated beyond the Veteran's own assertions. Objective neurological evaluations have been consistently normal or negative as they may have related to the her migraine headaches. In her October 2006 Application for Increased Compensation Based on Unemployability, the Veteran asserted 79 hours lost due to illness during her employment in financial services between November 1, 2004, and March 24, 2005, and 360.5 hours of time lost due to illness during her employment performing administrative work between June 27, 2005, and August 18, 2006. She reported that the employment ending August 18, 2006, was for the U.S. Air Force, working as a civilian. She does not report any other employment following her separation from service in November 2002. Earlier records including upon VA psychiatric evaluation for compensation purposes in December 2003, reflect that she initially lived on her service separation pay, and then lived with a friend, performing household tasks of cooking and cleaning as well as child care for the friend's children, in exchange for living accommodations for herself and her son. While the Veteran has asserted that time lost from work during her two post-service periods of employment was substantially due to her migraine headaches, this is not corroborated in the record. A reply from the U.S. Air Force employer in October 2006 informed that she had last worked on August 18, 2006, that she was employed as an office automation secretary, that she had been employed since June 27, 2005, and worked 40 hours per week, and that she quit or resigned from her employment. That reply does not indicate a substantial amount of time lost due to being out sick. It does indicate that she was paid a lump sum for six remaining hours of unused annual leave. No reduction in pay due to absences is indicated in the employer's reply. This is apparently contrary to the Veteran's assertion at her October 2006 VA examination that she had missed approximately 40 hours of work per month due to her migraine headaches. And this assertion of 40 hours of missed work per month appears contrary to her assertions and submitted chart detailing numbers of days effectively incapacitated each month due to migraine headaches, with those charts and associated statements equating to considerably more than 40 hours per month missed from any full-time employment. The RO in October 2006 requested information from the Veteran's employer for the employment ending on March 24, 2005, but the requested information was not received from that prior employer. In light of the absence of corroboration of the Veteran's asserted frequency and severity of migraine headaches from service, and their inherent subjectivity based on the inherent difficulty or impossibility in discerning objectively whether an individual is experiencing or has experienced a migraine headache, the Board must to a significant degree look to the consistency of statements made by the Veteran and evidence of inaccuracy or falsehood in those statements. While the Veteran has been substantially consistent in submitted charts as to frequency and severity of migraine headaches, the Board notes that absence of corroboration of those charts, including by prior employers, and the apparent contradiction in her assertion of hours missed from work at the October 2006 VA examination, weigh against their credibility. As well, the glaring inconsistence between her assertion of migraine frequency as only "periodically" upon treatment for a skin condition in February 2006, and her assertion of migraines with a frequency of 25 out of 30 days upon VA neurological examination in April 2006, stands against her credibility. The Board ascribes the strongest weight to the clear contradiction presented in the record, between the Veteran's assertion at her April 2003 VA neurological examination addressing her migraines, at a time when her pending claim was for service connection, when she asserted only infrequent migraine headaches, and her subsequent assertions in submitted charts in September 2003, at a time when service connection for migraine headaches was granted and her pending claim was for increased evaluation for her migraine headaches, when she asserted, including addressing the same prior time intervals of February through April of 2003, far more frequent and severe migraines. This change of assertions, once service connection was established and the issue for VA adjudication had become level of compensation warranted based on the level of disability, appears to be consistent with the narcissistic personality identified by the June 2006 VA social worker as being reflected by the Veteran's service record, as well as with the documented poor effort upon December 2003 VA respiratory examination and the December 2003 VA respiratory examiner's finding of psychological overlay. It is also relatively consistent with her reporting, once the highest schedular rating for migraine headaches had been granted and once TDIU has been granted, upon VA examination for migraine headaches in February 2009, that she was now getting good response to her medications for her previously severely debilitating migraine disease. Her level of complaint as to frequency and severity of migraine headaches appears well- correlated with the secondary gain to be obtained by those assertions, howsoever they may be contradicted by prior statements. In summary, the Board, exercising its authority as de novo adjudicator to weigh all the facts presented, finds that the weight of the evidence is to the effect that motivation for secondary gain is most likely reflected in the Veteran's numerous assertions and submitted charts purporting to accurately reflect the frequency and severity of her migraine headaches. The Board accordingly concludes, in the absence of sufficient contrary evidence corroborating her assertions of frequent and severe migraines, that the evidence preponderates against the assignment of a higher disability evaluation than the 30 percent assigned for migraines for the period from February 13, 2002, through February 20, 2005; preponderates against a higher disability evaluation (on an extraschedular basis) than the 50 percent assigned for migraines for the period effective from February 21, 2005; and preponderates against a higher disability evaluation (on an extraschedular basis) than the 50 percent assigned for migraines effective from October 13, 2006. The Board finds that higher ratings at more discrete intervals beginning from the effective date of service connection are not warranted for the Veteran's service- connected migraine headaches, on an initial-rating basis. Fenderson v. West, 12 Vet. App 119 (1999). Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered referral of the case for extraschedular consideration, based on the Veteran's assertions effectively of marked interference with employment from migraines, but finds that these assertions, together with her assertions as to frequency and severity of her migraine headaches, lack credibility. (She already has TDIU, based upon all her service-connected disabilities considered together.) The Board accordingly concludes that referral for extraschedular consideration is not warranted. The regulatory criteria for extraschedular consideration are as follows: The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Absent credible evidence to support extraschedular consideration, referral is not warranted. The Court has held that, "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Thun v. Peake, 22 Vet. App. 111, 115 (2008). IV. Left Knee Disorder Initial Rating Claim When reviewing the level of disability due to a service- connected joint disorder, when the rating is based on limitation of motion, the Board must consider an increased schedular rating based on functional loss due to pain on undertaking motion, weakened movement, fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45 (2008); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2008). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Potentially applicable rating criteria for disorders of the knees are here listed. 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2008). 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2008). 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2008). The Board herein considers, and denies, higher initial ratings than those assigned for the Veteran's left knee disorder, based on the weight of reliable evidence against significant disability of the knee. The Board herein rates the knee based on limitation of flexion, under DC 5260, in the absence of disability warranting a rating under any other rating code. Thus, the Board herein finds that the evidence preponderates against disability equivalent to limitation of flexion to 45 degrees, for the initial rating interval between November 13, 2002, and February 20, 2005; and the Board herein finds that the evidence preponderates against disability equivalent to limitation of flexion to 30 degrees, for the initial rating interval beginning February 21, 2005, as discussed infra. Upon an April 2003 VA examination of the knees for compensation purposes, the Veteran's history of bilateral kneecap realignment in 2002 was noted. She asserted that she had no associated stiffness, swelling, heat, redness, instability, or lack of endurance. She further asserted that she had no flare-ups and used no crutches, cane, or brace. There was no history of dislocation or recurrent subluxation. Upon examination, both knees had full range of motion from zero degrees extension to 140 degrees flexion, with no pain upon examination, no loss of function upon repetitive activities, and no evidence of edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding. Gait was normal. The knee ligaments were stable. The examiner assessed bilateral patellofemoral syndrome, with Q-angle corrected surgically bilaterally, with only rare mild discomfort. In a September 2003 submitted statement, regarding her left knee, the Veteran asserted that the leg was partially numb on the left side, that it was hypersensitive to pain, that she could not run, that if the leg were bent for a few minutes it would become numb, and that the leg was still weak from the surgery. Regarding her right knee, she presented the same complaints with the exception of no complaint of weakness. In January 2005, the Veteran submitted a written statement in support of all her appealed claims (accepted as a timely substantive appeal based on her assertions of having moved and not having received prior VA mailings). In it she addressed her left knee disorder as causing intermittent pain or discomfort, including popping or clicking and swelling when she walked for 15 minutes or more, and intermittent stiffness. She also complained of weakness in that extremity. She reported that both knees fatigue easily, and that her "foot" falls asleep when her knees are bent slightly, so that she sits with her legs extended. The Veteran was seen for VA treatment in July 2005 complaining of bilateral knee pain with bilateral patellar subluxation. The Veteran expressed significant concern about pain and reported reducing activity to avoid recurrence. She reported that she had hypermobile joints especially in the knees, seemingly worse now and more so in the left knee. Both knees were hypermobile to lateral motion on evaluation, though the examiner did not note disability associated with this finding. Upon VA orthopedic treatment consultation in September 2005 for complaints of bilateral knee pain, greater on the right, the Veteran's history of bilateral Fulkerson procedure was noted. Upon examination, the left patella tracked well, but the right patella tracked laterally with crepitus. There was also an approximate 25 percent subluxation of the right knee with immediate apprehension. X-rays revealed well-healed osteotomies, but with the right patella in a slightly lateral position. At a December 2005 VA orthopedic surgery clinic treatment for her knees, the examiner noted that the Veteran had been seen in September 2005 for right knee instability, but that she had undergone only one month of physical therapy. She complained of continued right knee pain and instability, with some improvement, and was seeking corrective surgery. Examination of the left leg showed a stabled knee without pain or apprehension, range of motion from zero to 120 degrees flexion, good strength, and a Q angle of 10 degrees. The examiner assessed, apparently in reference to greater disability noted in the right knee, that she required at least three months of physical therapy before any consideration of knee surgery. Also in December 2005, the Veteran was administered a right knee steroidal injection for assessed pes anserine tendonitis. Upon a June 2006 VA social worker visit, the social worker noted that the Veteran was extremely obese but appeared generally healthy. Other records within the claims file also note the Veteran's relative height/weight or obesity, but generally fail to address any associated effect on joint functioning or the Veteran's ambulatory capacity generally. Other records, including those noted herein, do record the Veteran's complaints of reduced capacity for activities such as running, without commenting on impairment associate with body composition or deconditioning. In an October 2006 statement the Veteran reported that she could not run due to her knees, and that brisk walking led to intense pain. She added that she could neither stand nor sit with her legs bent for extended periods of time due to her knees, with standing causing her knees to buckle and sitting causing her right lower leg to become numb. She further complained that her right knee dislocates, but less frequently because she was not physically active. She added that upon the VA examination in December 2005 or January 2006 the examiner accidentally dislocated her right knee cap, and as a result the Veteran no longer wanted to be touched, so the examination was ended. Upon an October 2006 VA examination for compensation purposes, the examiner noted the Veteran's history of medial cruciate ligament reconstruction bilaterally in 2001. At that examination, she reported that her left knee gave her no problems. She described in detail problems associated with her right knee. The examiner observed a normal left knee, with range of motion from zero degrees extension to 125 degrees flexion, no objective signs of pain with range of motion, no joint instability, and no additional limitation of motion due to DeLuca factors of pain, fatigue, weakness, or lack of endurance following repeated use. The examiner reviewed January 2006 X-rays showing post-operative changes in the left knee with no other significant abnormalities. The examiner assessed a postoperative left medial collateral ligament injury, but made no specific findings of limitations due to the left knee (though she did as make such findings related to the right knee). The Veteran was afforded a February 2009 VA examination to address her bilateral knee disorders. This examiner, while reviewing the claims file, did not address the Veteran's extensive charts detailing frequency and severity of difficulties in each knee, and failed to address prior records as well as these charts when this examiner assessed that the Veteran did not have flare-ups in the knee. However, the examiner did observe that the left and right knees were similar, with the left knee showing range of motion from zero degrees extension to 90 degrees flexion without crepitus or obvious pain. The examiner found parapatellar tenderness and a positive apprehension sign for the left knee, but no effusion, instability to varus or valgus stress or Lachman's sign. The examiner also found no additional limitation following repetitive use of the knee except increased pain and crepitus. The examiner also noted that there were no effects of DeLuca factors of incoordination, fatigue, weakness, or lack of endurance affecting her left knee functioning. The Board's adjudication of the Veteran's claim for an increased evaluation for her left knee disorder must in this case substantially rely on objective medical findings of disability where, as here, the Board has found that the Veteran's assertions of disability substantially lack credibility. Her lack of credibility in her assertions pertaining to her migraine headaches carry over to her assertions regarding her knees, because the Board herein finds that secondary gain colors her assertions, which necessarily must serve as a motivating factor in her statements for all her claimed disabilities, once found to be a motivating factor for one. Objective medical findings do not support substantial disability for the Veteran's left knee disorder under any applicable criteria. While she has, on a few occasions and in some submissions, asserted pain or instability in the left knee as well as numbness in the left leg below the knee, examiners have not found significant limitation of motion, swelling, or instability or DeLuca factors to support a higher evaluation than the zero percent rating assigned effective from November 13, 2002, or than the 10 percent rating assigned effective from October 26, 2006. 38 C.F.R. § 4.71a, DCs 5257, 5260, 5261, 5262. VA examinations for treatment or rating purposes in April 2003, September 2005, December 2005, October 2006, and February 2009, as detailed supra, have produced findings generally of a normally functioning postoperative left knee, with no or slight Q angle, little or no pain, and no impairment truly interfering with functioning of the knee, including no DeLuca factors resulting in increased impairment. Treatment records also have not resulted in objective findings of any significant impairment in the left knee over any interval between separation from service and the present. The Board accordingly concludes that the preponderance of the evidence is against the claim for higher initial ratings for the Veteran's left knee disorder, for any time interval under consideration, and thus no higher initial rating and no staged ratings are warranted. 38 C.F.R. § 4.71a; Fenderson. The preponderance of the evidence is against the claim for higher initial ratings than the zero percent assigned effective from November 13, 2002, or than the 10 percent later assigned effective from October 26, 2006, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. The Veteran has not contended, and the evidentiary record does not otherwise show, that her left knee disorder has resulted in significant interference with employment or that it otherwise presents special disability not covered by schedular rating criteria. Accordingly, extraschedular consideration for the Veteran's left knee is not warranted. 38 C.F.R. § 3.321(b). ORDER A higher initial rating than the 30 percent assigned effective November 13, 2002, or than the 50 percent assigned effective February 21, 2005, or than the 50 percent assigned effective October 13, 2006, is denied for migraine headaches. A higher initial rating than the zero percent assigned effective November 13, 2002, or than the 10 percent assigned effective October 26, 2006, is denied for status post left medical cruciate ligament reconstruction. REMAND In the Supplemental Statement of the Case issued the Veteran in July 2008, the RO for the first time listed the service- connected right knee disability as 10 percent disabling, and denied an increased rating due to her failure to report for a medical examination. However, the claims file contains no rating decision granting a 10 percent evaluation for the right knee. The previous rating decision, issued in August 2007, granted an increase from 0 percent to 10 percent for the left knee, but did not address the right knee at all, and the August 2007 SSOC (mailed in September 2007) declined to increase the right knee above 0 percent. Even if the Board were to construe the Veteran's subsequent statement of September 2008 as an NOD, the SSOC of March 2009 as an SOC regarding the right knee, and her representative's May 2009 Brief as her substantive appeal on the issue, the lack of a rating decision granting the increase and specifying an effective date for that action precludes an informed appeal. Accordingly, the RO must review the issue of an increased rating above 0 percent for the right knee, notify the appellant of any increase deemed appropriate and assign an effective date for such increase, if any, and then issue an SSOC explaining the action to her. 38 C.F.R. §§ 19.31, 19.37. In addition, the Veteran's claims of entitlement to service connection for residuals of septorhinoplasty and chronic sinusitis were not withdrawn when she withdrew her claims for additional disabilities by a telephonic contact in October 2006, subsequently reduced to writing. In fact, she specifically requested that they be left pending in her appeal. Subsequent to the RO's issuance of an SOC in March 2004 addressing these claims, pertinent evidence has been added to the record without RO review or waiver of RO review. In the statement received by the VSC in October 2006, she asserted that both of those issues had resulted from the same surgery. Accordingly, RO review and issuance of an SSOC prior to Board adjudication of these claims is also required under 38 C.F.R. §§ 19.31, 19.37. Accordingly, the case is REMANDED for the following action: Following any indicated development, the RO should readjudicate de novo the claim for a higher initial rating for a right knee disorder (medial cruciate ligament reconstruction) than the zero percent previously assigned, and the claims for service connection for residuals of septorhinoplasty and for chronic sinusitis. If any one of these benefits sought is not granted to the Veteran's satisfaction, provide the Veteran and her representative with an SSOC and opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs