Citation Nr: 1323581	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  08-23 826	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.  

2.  Entitlement to service connection for a right knee disorder.

3.  Entitlement to service connection for a left knee disorder.  

4.  Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected posttraumatic stress disorder (PTSD).  

5.  Entitlement to an initial disability evaluation (rating) for left headaches, in excess of 10 percent prior to March 31, 2011, and in excess of 30 percent from March 31, 2011. 

6.  Entitlement to a total rating based upon individual unemployability as a result of service-connected disabilities (TDIU).  



REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel


INTRODUCTION

The Veteran, who is also the appellant, had active service from May 2002 to October 2002, and from January 2005 to October 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Huntington, West Virginia, which addressed the issues listed on the title page of this decision, with the exception of the TDIU claim.   

In a March 2011 Board decision, the Board took jurisdiction of the claim for a TDIU and remanded all the issues listed on the title page of this decision for further development.  The requested development has been accomplished in that the Veteran was afforded the requested examinations, which resulted in sufficient medical findings and proper opinions with regard to etiology.  The AMC, as part of the remand directive, also requested that the Veteran provide written authorizations to obtain any pertinent medical information.  To date, the Veteran has not responded.  The actions taken by the AMC substantially comply with the directives of the Board remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issues of service connection for atrial fibrillation and a left knee disability and for a TDIU are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  A current hearing loss disability for VA rating purposes has not been demonstrated for either ear.

2.  The Veteran did not sustain a right knee injury or disease in service.

3.  The Veteran does not currently have a chronic residual disability of the right knee. 

4.  Throughout the appeal period, the Veteran's headaches have caused characteristic prostrating attacks, but have not caused severe economic inadaptability for any period. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  Residuals of a right knee injury were not incurred in active military service.  38 U.S.C.A. §§ 1110, 1117 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012).

3.  Resolving reasonable doubt in favor of the Veteran, the criteria for an initial disability evaluation of 30 percent for headaches have been met for the time period prior to March 31, 2011.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8100 (2012).

4.  The criteria for an initial disability evaluation in excess of 30 percent for headaches have not been met or approximated for any time period.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8100 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012).  The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1).  See 73 Fed. Reg. 23,353-356 (April 30, 2008).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award.  Those five elements include: 
(1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

As it relates to the appeals of service connection for bilateral hearing loss and a right knee disorder, the RO, in a December 2006 letter, provided the Veteran with notice that informed him of the evidence needed to substantiate his claims.  The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain.  The letter further told him to submit relevant evidence in his possession.  The December 2006 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim.

With regard to the issue of an initial higher evaluation for headaches, because the Veteran's appeal arises from his disagreement with the initial rating following the grant of service connection no additional notice is required.  The United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date).

As it relates to the duty to assist, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence.  Moreover, as part of the March 2011 remand, the Veteran was to provide written authorizations to obtain treatment records for any additional health care providers.  The AMC, acting on behalf of the RO, sent the written authorization forms to the Veteran in March 2011.  To date, the Veteran has not supplied any additional written authorizations.   Moreover, no additional pertinent evidence has been identified by the claimant. 

As it relates to the appeal of service connection for bilateral hearing loss, the Veteran was afforded VA examinations in May 2007 and March 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be adequate for rating purposes.  The examination reports provided a history supplied by the Veteran and detailed examination results, provided sufficient information to properly address the Veteran's claim, specifically audiometric test scores and speech recognition test scores necessary for determining whether there is current hearing loss "disability" according to 38 C.F.R. § 3.385, and also provided an opinion as to the etiology of the Veteran's hearing loss.  

As to the appeal of service connection for a right knee disorder, the Board notes that Veteran was afforded a VA examination in March 2011 to assist in determining the nature and etiology of any current right knee disorder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be adequate for rating purposes.  The examination report provided a history supplied by the Veteran and detailed examination results, provided sufficient information to properly address the Veteran's claim, and also provided an opinion as to the existence of a right knee disability.  

As to the appeal for a higher initial evaluation for headaches, the Veteran has been afforded VA examinations in March 2007 and March 2011.  The examination reports provided a detailed history and comprehensive examination results to properly address the Veteran's claim.

The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal.  Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to notify or assist the Veteran in substantiating this claim.

Service Connection Legal Authority

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

In this case, bilateral hearing loss, if sensorineural in nature, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service under 38 C.F.R. § 3.303(b) apply.  Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection.  38 C.F.R. § 3.303(b).  

The claimed right knee disorder is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker, 708 F.3d 1331.

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id. 

Service connection may be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1) (VA has issued an interim final rule extending this date to December 31, 2016).  In claims based on undiagnosed illness, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Notably, laypersons are competent to report objective signs of illness.  Id.  A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or 
(C), any diagnosed illness that the VA Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B).

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; 
(6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms;
(8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans.  Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses.  Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the VA Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).  These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date.  See 75 Fed. Reg. 1,997 (Oct. 7, 2010).

Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c).

The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(d)(1).  The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(d)(2).  The Persian Gulf War period runs from August 2, 1990, to a date not yet determined. 38 U.S.C.A. § 101(33).

It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 3.102.

Service Connection for Bilateral Hearing Loss

Impaired hearing will be considered a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels or more; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The Veteran contends that his current bilateral hearing loss is due to noise exposure during service which he sustained as a result of his military occupational specialty as a combat engineer.  He maintains that he was exposed to noise from firefights, mortars, machine guns, rifles and IED's.  

After a review of all the evidence, the Board finds the Veteran was exposed to loud noises during service.  The Veteran reported a history of in-service noise exposure as the result of his duties performed during service, which the Board finds occurred, based upon the duties performed by the Veteran in service.  

The Board next finds that the weight of the evidence demonstrates that the Veteran does not have a current bilateral hearing loss "disability" for VA rating purposes, and has not had such disability at any time prior to or during this claim.  A review of the Veteran's service treatment records reveals that at the time of a December 2001 audiogram, testing revealed pure tone thresholds, in decibels, of 5, 0, 0, 20 and 10 for the left ear; and 0, 0, 0, 0, and 0, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz.  At a May 2002 audiogram, testing revealed pure tone thresholds, in decibels, of 0, 0, 10, 15, and 15 for the left ear; and 5, 0, -5, 5, and 5, for the right ear, at 500, 1000, 2000, 3000, and 4000 Hertz.  At the time of a January 2004 audiogram, testing revealed pure tone thresholds, in decibels, of 5, 0, 0, 20, and 10 for the left ear; and 5, 0, 0, 0, and 0 for the right ear at 500, 1000, 2000, 3000, and 4000 Hertz.  

After service, in May 2007, the Veteran was afforded a VA audiological examination in conjunction with his claim.  The Veteran stated that while in Iraq, from February 2005 to September 2005, he was exposed to fire fights, mortars, machine gun and M16 rifle noise.  He also reported that he had blown up IED's.  The Veteran stated that prior to this time he had always worked in sales and that he had had no recreational noise exposure.  Testing performed at the May 2007 VA examination revealed pure tone thresholds, in decibels, of 5, 5, 0, 10, and 10 for the right ear; and 5, 5, 5, 15, and 15 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz.  Speech recognition was 96 percent in the right ear and 100 percent in the left ear.  These results do not meet the criteria for hearing loss (or impairment) that is considered a disability for VA disability compensation purposes under 38 C.F.R. § 3.385.

The VA examiner in May 2007 indicated that the Veteran had essentially normal hearing bilaterally.  Based on this conclusion, the VA examiner opined that hearing loss was not caused by military noise.  In accordance with the March 2011 Board remand, the Veteran was afforded an additional VA examination in March 2011.  

At the time of the VA examination in March 2011, the Veteran reported a five and one-half year history of being a combat engineer in the Marine Corps, with exposure to demolition and small arms fire.  Testing performed at the March 2011 VA examination revealed pure tone thresholds, in decibels, of 10, 10, 10, 15, and 15 for the right ear; and 10, 10, 15, 20, and 20 for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz.  Speech recognition was 96 percent in the right ear and 98 percent in the left ear.  These results do not meet the criteria for hearing loss (or impairment) that is considered a disability for VA disability compensation purposes under 38 C.F.R. § 3.385.  Also, the examiner indicated that the Veteran had bilateral clinically normal hearing. 

As to service connection for bilateral hearing loss, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims' interpretation of 38 U.S.C.A. § 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and, therefore, the decision based on that interpretation must be affirmed). 

The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).

While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds or speech recognition thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question that is also based on objective testing (audiometric and speech recognition) that the Veteran cannot perform on himself.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 

The competent evidence, consisting of the results of the in-service audiological evaluations and the post-service VA audiological examinations, affirmatively shows that the Veteran does not currently have a bilateral hearing loss as defined in 38 C.F.R. § 3.385.  There was no showing of a hearing loss (impairment) to the degree of "disability" as defined for VA rating purposes at any time subsequent to service, including prior to and during this claim period.  For VA disability compensation purposes, the Veteran's bilateral hearing impairment does not meet the regulatory criteria to be considered a hearing loss disability.  See 38 C.F.R. § 3.385.  

Because a current disability of hearing loss has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309.  As explained, there is no current, competent evidence of bilateral hearing loss within the meaning of 38 C.F.R. § 3.385.  As such, the criteria for service connection for bilateral hearing loss have not been met, and the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

Service Connection for Right Knee Disorder

The Veteran maintains that he currently has a right knee disability which began in service and has continued since service.  

After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a right knee injury or disease in service.  Available service treatment records show no complaint, finding, or treatment involving the right knee.  While service treatment records do show that the Veteran injured his left knee, there is no notation of a right knee problem and no subsequent treatment is shown.  On the September 2002 report of medical history, the Veteran checked the "no" box when asked if he had a tricked or locked knee.  On a September 2005 report of medical history, the Veteran again checked the "no" box when asked if he was having or had had any knee problems.  On an August 2006 post-deployment health assessment, the Veteran did not report having knee problems.  Thus, no right knee disability or symptoms related thereto is shown during service. 

The Board also finds that the weight of the evidence demonstrates that the Veteran does not currently have a chronic residual disability of the right knee.  In conjunction with the March 2011 Board remand, the Veteran was afforded a VA examination in March 2011.  The Veteran denied having any problems with the right knee at the time of the examination.  There were no reports of deformity, no giving way, no pain, no stiffness, no weakness, no incoordination, no decreased speed of joint motion, no episodes of dislocation/subluxation or locking, no symptoms of inflammation, no flare-ups of joint disease, and no effects on joint motion.  

Physical examination performed at the time of the March 2011 VA examination revealed no crepitation, no mass behind knee, no clicks or snaps, no grinding, no instability, no patellar or meniscus abnormality, no abnormal tendons or bursae, and no other knee abnormalities.  Range of motion for the right knee was from 0 to 136 degrees with no pain following repetitive motion and no additional limitation after three repetitions.  X-rays of the right knee were normal.  The examiner noted a history of pain when going up or down stairs.  The examiner rendered a diagnosis of orthopedically and radiologically normal right knee with no clinical evidence to support an acute or chronic diagnosis of a right knee disorder.  

While the Veteran initially reported having had right knee pain since service on his November 2006 application, he did not report having any right knee problems on reports of medical history filled out at the end of his second period of service or in subsequent reports of medical history filled out as late as 2006.  Furthermore, at the time of the most recent VA examination, the Veteran denied having any problems with his right knee.  In light of the various inconsistencies, the Board does not find the Veteran's account of an in-service right knee injury/pain to be credible. 

The Board notes that the March 2011 VA examiner indicated that the Veteran had a history of right knee pain; however, extension was to 0 degrees and flexion as to 136 degrees, with x-ray findings being within normal limits.  The VA examiner specifically found that the Veteran had an orthopedically and radiologically normal right knee with no clinical evidence to support an acute or chronic diagnosis of a right knee disorder.  Review of the Veteran's treatment records does not indicate that he currently suffers from chronic residuals of a right knee injury. 

While the Veteran has complained of pain associated with the right knee, and he is competent to report any symptoms that come to him through the senses, pain is a symptom and not a diagnosed disability.  The Veteran lacks the requisite medical expertise to attribute any right knee pain he experiences to a diagnosed disability involving the right knee.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  Furthermore, the Board does not find the Veteran's assertion that he suffered a right knee injury during service or symptoms in service or since service to be credible.  Therefore, the Veteran's opinion is afforded far less probative value than the other lay and medical evidence showing no in-service right knee injury or chronic residuals of a right knee injury.  VA does not grant service connection for symptoms alone, without an identified basis for those symptoms. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich, 104 F. 3d 1328.  The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative.  McClain, 21 Vet. App. at 321.  However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed disability, that holding is of no advantage; therefore, the preponderance of the evidence is against the claim, and service connection is not warranted for residuals of a right knee injury.

Next, turning to the Veteran's contention that any right knee pain, if that is indeed what he is claiming, is a symptom of a chronic qualifying disability, the Board finds, based upon a review of service records, that the Veteran is a Persian Gulf Veteran. 

However, as noted above, service connection may only be established on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1).  Here, as discussed above, the weight of the evidence is against a finding that the right knee pain became manifest during active service.  Moreover, while the Veteran's right knee pain has not been attributed to any known right knee diagnosis, the right knee difficulties have not manifested to a degree of 10 percent or more.  As the right knee pain is productive of no limitation of extension and limitation of flexion to 136 degrees, the criteria for a 10 percent rating based on limitation of motion are not met under Diagnostic Codes 5260 (flexion) or 5261 (extension).  As the Veteran does not have diagnosed arthritis, or even any clinical findings suggestive of arthritis or indicative of disability similar to arthritis, the criteria for a 10 percent rating under Diagnostic Code 5003 are also not met.  38 C.F.R. § 4.71a (2012).  Thus, the undiagnosed illness presumptive provisions of 38 U.S.C.A. § 1117 do not provide a basis for service connection as a presumptive qualifying chronic disability.

In reaching the conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.102, a reasonable doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  However, because the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.

Initial Rating for Headaches

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3. 

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The Veteran maintains that the symptomatology associated with his headache disorder warrants at least a 30 percent disability evaluation throughout the appeal period, if not a 50 percent evaluation for the impact it has on his employment.  

Under Diagnostic Code (DC) 8100, a 10 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once in two months over the last several months.  A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months.  A 50 percent rating is assigned for migraine headaches when a Veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability.  38 C.F.R. § 4.124a.

After reviewing all the evidence, the Board finds that, throughout the appeal period, the Veteran's headaches have caused characteristic prostrating attacks, but have not caused severe economic inadaptability for any period.  In conjunction with his claim for service connection for headaches, the Veteran was afforded a VA examination in March 2007.  At the time of the examination, the Veteran reported that his headaches started after his return from Iraq.  He stated that the onset of the headache was gradual and built up slowly, affecting the right side of his head, that the pain was throbbing at times and he saw spots in front of his eyes, and indicated that the duration varied from a few hours to a few days.  He stated that he was sensitive to light during the headaches.  The frequency of the headaches were reported to be from one to three times per month.  

The VA examiner in March 2007 indicated that the Veteran had migraines two to three times per month.  The headaches were noted to last from a few hours to ten days.  During this time, his work was reported to be affected, the manner of being affected was not indicated, and there was no assertion of loss of earnings from the job due to time lost from the headaches.  The examiner stated that less than half the attacks were prostrating and the usual duration was longer than 2 days.  

The March 2007 VA examiner rendered a diagnosis of headaches-mixed migrainous and tension type.  The examiner assessed that there was no significant effect on his occupation except when he had headaches.  

In a June 2007 statement, the Veteran reported having headaches three to four days per week.  He stated that they had interfered with his work and that he had missed several days and half days.  He reported that his productivity was dropping because of the continual headaches.  

At the time of a May 2008 VA outpatient visit, the Veteran brought his headache diary.  He reported that he had headaches more days than not and at least once a month he had to leave his employment as a bank executive due to headaches.  The headaches were reported to be partially relieved with Zomig.  At a May 2008 neurology consult later that month, the Veteran reported having headaches on a daily to weekly basis which would last up to three or four days.  

In a May 2009 statement in support of claim, B.C. and M.S., co-workers with the Veteran, indicated that he had frequent headaches, which ranged from mild to very severe.  They stated that they could tell when the Veteran had a headache, that the Veteran would sit in the office with the lights off and with his head in his hands, and that he had these headaches two to three times per week on average during a five day work week.  Coworkers stated that, when the headaches were very severe, the Veteran's eye would become bloodshot and swollen, and sometimes (two to three times every month) he had to leave work early.  They noted that his headaches affected his work and his ability to interact with co-workers effectively.  

In conjunction with the March 2011 Board remand, the Veteran was afforded an additional VA examination in March 2011.  At the time of the examination, the Veteran was noted to have had weekly migraine headaches for the past twelve months.  The duration was reported as longer than two days.  Following examination, diagnoses of migraine headaches and tension type headaches were rendered.  The examiner noted that the Veteran had been sent home from work due to the severity of the headaches and photosensitivity.  The Veteran was noted to be employed on a full-time basis.  He had not lost any time from work in the past twelve months.  The examiner assessed that the Veteran's headaches did not prevent him from being gainfully employed in a sedentary or physical capacity.  

In an August 2012 statement at the initial VA examination, the Veteran reported that he was having headaches on a weekly basis.  The Veteran stated that he felt that he should have been evaluated as 30 percent disabling since his initial application.  

Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptomatology for headaches more closely approximates that for characteristic prostrating attacks occurring on an average of once a month, warranting a 30 percent disability evaluation, from the initial grant of service connection, November 17, 2006, to March 31, 2011.  The Veteran has been shown to have prostrating migraine attacks at least once a month since the date of his initial claim for service connection, more nearly approximating the criteria for a 30 percent disability rating under Diagnostic Code 8100.  38 C.F.R. § 4.124a.

The Board also finds that an initial disability evaluation in excess of 30 percent for headaches have not been met for any period.  The evidence does not demonstrate that the Veteran's headaches have caused severe economic inadaptability at any time.  The Board notes that the record contains statements from the Veteran that he had had to take several full days and half days off as a result of his headaches.  The Board further observes that the statement from the Veteran's co-workers reveals that he has difficulty at work sometimes with his headaches which has caused him to retreat to his office and turn off the lights and holds his head in hands, with the workers noting that the condition has caused him to leave early on occasion.  

There have been no findings or evidence demonstrating severe economic inadaptability at any time.  The Veteran has been shown to have maintained full-time employment throughout the appeal.  Furthermore, at the time of the most recent March 2011 VA examination, the Veteran was noted to have missed zero days in the past 12 months as result of his service-connected headache disability.  While the headaches interfere with employment, the evidence of record does not demonstrate severe economic inadaptability.  As the preponderance of the evidence is against an evaluation in excess of 30 percent for any period, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether an extraschedular evaluation would have been warranted for the migraine headache disability.  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's headache disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The rating assigned under DC 8100 is based on the average impairment of earning capacity resulting from headaches involving prostrating attacks.  The rating criteria specifically contemplate the frequency and severity of the headaches, including whether the headaches are prostrating, and includes consideration of economic inadaptability.  The record contains no indication that the Veteran's headache disability causes him greater difficulty than that contemplated by the 30 percent rating assigned in this decision.  Therefore, having reviewed the evidence and the ratings assigned, the Board finds that the evidence does not show such an exceptional disability picture to render the schedular evaluation assigned for the headache disability to be inadequate to rate the Veteran's service-connected headache disability; therefore, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted.


ORDER

Service connection for bilateral hearing loss is denied.  

Service connection for a right knee disorder is denied.  

An initial disability evaluation headaches of 30 percent for the period prior to March 31, 2011 is granted; a rating in excess of 30 percent for any period is denied.



REMAND

Service Connection for Atrial Fibrillation

As it relates to the claim of service connection for atrial fibrillation, to include as secondary to service-connected PTSD, the Board notes that in the March 2011 remand, it was observed that the Veteran underwent a VA examination in May 2007, at which time the examiner determined that the Veteran's episode of atrial fibrillation that was diagnosed in October 2006 was not caused or a result of his PTSD.  However, the Board noted that the examiner observed that studies had shown that anxiety had been reported as a trigger for paroxysmal atrial fibrillation but that the atrial fibrillation of the Veteran was currently not in this category (paroxysmal atrial fibrillation) since he had a single episode of atrial fibrillation which was an idiopathic or lone atrial fibrillation.  The examiner indicated that "idiopathic" indicated that the cause of the atrial fibrillation was unknown and that, in this case, there was no support in the literature of a relationship between the lone or idiopathic atrial fibrillation and the current PTSD.  The examiner concluded that there was no causal relationship between the PTSD and a single episode of atrial fibrillation. 

In its March 2011 remand, the Board noted that the March 2007 examiner delineated a difference between paroxysmal atrial fibrillation and idiopathic or lone atrial fibrillation when determining that there was no causal relationship between the PTSD and a single episode of atrial fibrillation.  The Board observed that since the May 2007 VA examination the Veteran has been diagnosed with paroxysmal atrial fibrillation, as a February 2009 emergency department treatment note diagnosed the Veteran with paroxysmal atrial fibrillation after an episode of nausea, vomiting, symptomatic tachycardia and palpitations.  The Board indicated that, as the Veteran had a new diagnosis of paroxysmal atrial fibrillation and the May 2007 VA examiner specifically predicated his opinion on a relationship between lone or idiopathic atrial fibrillation and PTSD, a new opinion was needed to determine whether the Veteran's current paroxysmal atrial fibrillation was related to his PTSD.  As a result, the Board requested that the Veteran's medical records to be reviewed by VA physician.  After reviewing the claims and associated VA medical records, the VA physician was to evaluate the etiology of any current pulmonary/heart disorder.  An opinion was to be provided as to whether there was at least a 50 percent probability or greater (at least as likely as not) that the Veteran developed a heart disability, specifically paroxysmal atrial fibrillation, that was proximately due to or was aggravated by his service-connected PTSD.  Adequate reasons and bases were to be provided with the opinion. 

The Veteran was afforded as examination in March 2011; however, the examiner was a nurse practitioner and not a physician.  The Veteran's representative has noted the examiner was not a physician, as was required by the Board remand, and has requested that the Board remand the claim for a new examination by an appropriately qualified physician, citing to Stegall at 271.

A review of the claims folder also reveals that the March 2011 VA examiner also did not indicate whether the Veteran's PTSD aggravated (permanently worsened) the diagnosed paroxysmal atrial fibrillation.  As result of the above, a new opinion should be obtained from a qualified VA physician as to the etiology of any atrial fibrillation, to include paroxysmal atrial fibrillation, and it relationship, if any to the service-connected PTSD.  

Service Connection for a Left Knee Disorder

As it relates to the appeal of service connection for a left knee disorder, the Board notes that the Veteran was seen in August 2002 with complaints of left knee pain after going down a hill.  Following examination, a diagnosis of left iliotibial band syndrome was rendered.  The Veteran was given crutches at that time.  At an August 2002 follow-up visit, the Veteran was again seen with complaints of left knee pain.  A diagnosis of left patellofemoral pain syndrome was rendered at that time.   The Veteran was again seen three days later with a diagnosis of resolved patellofemoral pain syndrome being rendered.  Service treatment records reveal no further complaints or findings of left knee problems during the Veteran's remaining period of service.  

In May 2007, after service, the Veteran was seen with complaints of left knee pain.  He stated that "I blew out my knee in the service" and was on crutches for two weeks.  The Veteran indicated that it hurt going down steps and when squatting.  A diagnosis of chronic left knee pain was rendered.  A May 2007 MRI of the left knee was found to be unremarkable.  In May 2008, the Veteran was again seen with left knee pain.  A past history of arthralgia was noted.  

In a May 2009 statement in support of claim, the Veteran's wife indicated that he had pain in his left knee.  She stated that prior to boot camp she had never known the Veteran to have knee pain.  

In conjunction with the March 2011 Board remand, the Veteran was afforded a VA examination in March 2011.  At the time of the examination, the Veteran was noted to have abnormal motion.  Testing performed at that time revealed range of motion from 0 to 126 degrees.  The examiner also noted that there were symptoms of giving way, instability, and pain.  The examiner further indicated that that the Veteran had left knee pain with squatting.  X-rays of the left knee were normal.  The examiner rendered an opinion of orthopedically and radiologically normal left knee.  

The Board notes that, while the VA examiner rendered an opinion of orthopedically and radiologically normal left knee, there were findings of abnormal motion of the left knee and symptoms of instability and pain.  The Board further observes that the Veteran sustained an injury to his left knee in service with diagnoses of left iliotibial band syndrome and left patellofemoral pain syndrome being rendered.  Based upon the above, the Veteran should be afforded an additional VA examination to assist in determining the nature and etiology of any left knee disability (whether there is residual disability, including iliotibial band syndrome or patellofemoral pain syndrome) and its relationship, if any, to his period of service, including a left knee injury in service.  


TDIU

Additionally, the outcome of the claim for a TDIU could be affected by the results of development ordered on remand.  Thus, the TDIU claim is inextricably intertwined with these service connection issues, and the proposed development will encompass those issues.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).

Accordingly, the issues of service connection for atrial fibrillation (including as secondary to PTSD), service connection for a left knee disorder, and for TDIU are REMANDED for the following action: 

1.  The RO/AMC should arrange for the Veteran's treatment (medical) records to be reviewed by VA physician to assist in determining the etiology of any current heart disorder, to include paroxysmal atrial fibrillation.  The Veteran's claims file should be made available to the examiner for review in conjunction with his/her report.  After reviewing the evidence and associated VA medical records, the VA physician should evaluate the etiology of any current pulmonary/heart disorder.  Thereafter, the examiner should offer the following opinions:
 
Is it as likely as not (at least a 50 percent probability) that the Veteran's heart disability, specifically paroxysmal atrial fibrillation, was proximately caused by the service-connected PTSD?

Is it as likely as not (at least a 50 percent probability) that the Veteran's heart disability, specifically paroxysmal atrial fibrillation, was aggravated (permanently worsened) by the service-connected PTSD?  

A rationale should be provided for any opinion that is rendered.  

2.  Schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any left knee problems, to include any qualifying chronic disability (including undiagnosed illness) resulting from Gulf War Service.  All necessary tests should be performed.  The examiner should indicate if there are objective indications of left knee symptoms and, if so, whether the symptoms are attributable to a "known" clinical diagnosis.  When rendering the above opinions, the examiner is to make reference to the in-service diagnoses of left iliotibial band and the patellofemoral pain syndrome when rendering the opinion.  

3.  Readjudicate the remanded issues of service connection for atrial fibrillation and a left knee disability and the TDIU.  If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the 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. 2012).



______________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs