Citation Nr: 1327757	
Decision Date: 08/29/13    Archive Date: 09/05/13

DOCKET NO.  02-15 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for bilateral pes planus.

2.  Entitlement to service connection for left ankle disability as secondary to service-connected left knee disabilities.

3.  Entitlement to an evaluation in excess of 40 percent for service-connected chronic low back strain, to include assignment of a separate compensable rating for neurological manifestations of the disability.

4.  Entitlement to an initial evaluation in excess of 10 percent for service-connected chronic headaches and dizziness for the period from May 17, 2005 to November 14, 2010 and in excess of 30 percent beginning November 15, 2010.

5.  Entitlement to an evaluation in excess of 10 percent for service-connected residuals of a traumatic injury of the left knee, status post arthrotomy with excision of exostosis.

6.  Entitlement to an initial evaluation in excess of 10 percent for service-connected traumatic arthritis of the left knee.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 15, 2010.

8.  Entitlement to eligibility for dependents' educational assistance (DEA) benefits prior to November 15, 2010.


REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Attorney at law


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active duty from April 1977 to March 1980.

These matters originally came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana dated in March 2001 (left knee trauma residuals), November 2001 (traumatic arthritis of left knee), January 2006 (bilateral pes planus, left ankle, low back strain, and headaches and dizziness), and November 2011 (TDIU and DEA benefits).  

The issues on appeal were remanded by the Board to the RO for additional development in May 2007 and April 2011.  In November 2012, the Board again remanded the issues listed on the title page to obtain Social Security Administration (SSA) records and a VA examination and nexus opinion on whether the Veteran is entitled to a separate rating for neurological manifestations of low back strain, to include urinary frequency and any associated paresthesia.  A reply from SSA and pertinent VA evaluations with nexus opinions dated in January 2013 and March 2013 were added to the claims files.  A Supplemental Statement of the Case addressing the issue of a separate compensable rating for the neurological manifestations of low back strain was issued to the Veteran in April 2013; and a statement on behalf of the Veteran, which is considered to be in lieu of a Form 9 appeal, was received in May 2013.

As information from SSA and VA evaluations with nexus opinions have been added to the claims files in response to the Board remand, there has been substantial compliance with the Board remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) ((Holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives)). 


FINDINGS OF FACT

1.  Pes planus was demonstrated on examination for entrance to service, and the most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's preexisting pes planus underwent a permanent increase in severity as a result of military service.

2.  The most probative competent and credible evidence of record fails to demonstrate that it is at least as likely as not that the Veteran has a chronic left ankle disability that is causally related to service-connected disability.

3.  The service-connected chronic low back strain is manifested by complaints of pain, including on motion, productive of limitation of motion of the thoracolumbar spine, with functional impairment not comparable to ankylosis of the thoracolumbar spine.  

4.  The service-connected residuals of traumatic injury of the left knee are manifested by complaints of pain, including on use, productive of limitation of motion.

5.  The Veteran's left knee arthritis does not involve two or more major joints or two or more minor joint groups.

6.  The Veteran's headaches with dizziness resulted in a score of "1" on the table for Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified; greater impairment consistent with a higher score on the table, including increased cognitive deficits, behavioral, psychological, or physical symptoms not subject to separate ratings were not manifested.   

7.  There is no evidence prior to August 9, 2011 that headaches were manifested by characteristic prostrating attacks averaging more than one in two months over the last several months.  

8.  The Veteran complained on VA evaluation on August 9, 2011 of weekly headaches that were prostrating more than 50 percent of the time; the VA examiner concluded that these headaches rendered the Veteran unemployable.   

9.  Claims for increased ratings for service-connected low back and left knee disabilities were received by VA from the Veteran on October 20, 2000; a claim for TDIU was received by VA in November 2010.   

10.  A November 2011 rating decision granted TDIU effective November 15, 2010.

11.  Medical evidence that the Veteran was totally disabled due to 
service-connected disabilities beginning on March 19, 2009 is of record.


CONCLUSIONS OF LAW

1.  Preexisting pes planus was not aggravated by active service.  38 U.S.C.A. §§ 1111, 1131, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012).

2.  A chronic left ankle disability is not proximately due, or chronically aggravated by, service-connected disability.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. 
§ 3.303, 3.310 (2012).  

3.  The criteria for an evaluation in excess of 40 percent for service-connected chronic low back strain, to include a separate compensable rating for neurological manifestations of low back strain, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2012).

4.  The criteria for an initial evaluation in excess of 10 percent for service-connected chronic headaches with dizziness from May 17, 2005 through November 14, 2010 are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8045-8100 (2012).

5.  The criteria for an initial evaluation in excess of 30 percent for service-connected chronic headaches with dizziness from November 15, 2010 through August 8, 2011 are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8045-8100 (2012).

6.  The criteria for an initial evaluation of 50 percent for chronic headaches with dizziness beginning August 9, 2011 are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8045-8100 (2012).

7.  The criteria for a rating in excess of 10 percent for service-connected residuals of a traumatic injury of the left knee are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257-5260 (2012).

8.  The criteria for an initial rating in excess of 10 percent for service-connected traumatic arthritis of the left knee are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5010 (2012).

9.  The criteria for an effective date of March 19, 2009 for TDIU are met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.155, 3.400 (2012).

10.  The criteria for an effective date of March 19, 2009 for DEA benefits are met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Notice to the Veteran was not sent in this case until later in the claims process.  However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant.  Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.  In this regard, the Board notes that the matters were readjudicated following completion of VCAA notice, including in supplemental statements of the case.

A letter was sent to the Veteran in August 2005 that informed him of the requirements needed to establish entitlement to service connection and to an increased evaluation.  The Veteran was informed in a June 2007 letter of the requirements needed to establish entitlement to service connection on a secondary basis.  The Veteran was also informed in the June 2007 letter of the criteria for consideration in the assignment of a disability rating and effective date, in the event of award of a benefit sought.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim.  VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  VA evaluations to determine current symptomatology of the service-connected low back, left knee, and headache disabilities were obtained in August 2011; and VA evaluations of the feet and left ankle, with nexus opinions, were obtained in January and March 2013.  

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the above-noted VA examinations obtained in this case are adequate.  The Veteran's claims files were reviewed, and clinical examination findings were reported.  The opinions considered all of the pertinent evidence of record, to include the Veteran's medical records and examination findings, and provided a rationale for each opinion stated.  Evaluations of the low back, left knee, and headaches provided the Veteran's current symptomatology pertinent to the criteria for rating each disability.  

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4).  The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein.  

The Veteran has been given ample opportunity to present evidence and argument in support of his claims.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).  

Analysis of the Claims

Service Connection Claims

The Veteran seeks service connection for pes planus and for a left ankle disability as secondary to service-connected left knee disability.  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).  

Service connection may also be granted for a disability that is proximately due to, the result of, or chronically aggravated by, an established service-connected disability.  38 C.F.R. § 3.310 (2012); Allen v. Brown , 7 Vet. App. 439 (1995). 

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

The law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1110, 1111 (West 2002).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b) (2012).

When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the "pre-existing condition.  38 U.S.C. § 1153.  If this burden is met, then the Veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the Veteran's claim is one for service connection.  This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.  See 38 C.F.R. 
§ 3.322.

Conversely, if a pre-existing disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but the Veteran may bring a claim for service aggravation of that disorder.  See Wagner, 370 F. 3d at 1094-1096.  In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  If the presumption of aggravation under 38 U.S.C.A. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C. § 1153; see also 38 C.F.R. § 3.306 (2006); Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096 (Fed. Cir. 2004).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Pes Planus

The Veteran seeks service connection for bilateral pes planus, which he contends was incurred or aggravated by service. 

The Veteran's service treatment reports reveal that pes planus was reported on the Veteran's pre-service examination in January 1977.  It was noted on examination in May 1977 that the Veteran had flexible pes planus with pronation which produced some prominence of the tibial malleolus.  The Veteran complained on his December 1979 separation medical history report of foot trouble; medical evaluation was normal except for swelling of the upper right leg and pain and swelling of the left knee.

According to an August 2005 treatment report, the Veteran had ankle pain due to abnormal walking mechanics.

When examined by VA in August 2011, the Veteran reported a history of flat feet since he was a child.  He used corrective shoes and an orthotic insert.  The diagnosis was pes planus, more impacted on the left, which affected his employment and daily activities.  The examiner concluded that the Veteran's pes planus was not aggravated by service and that it was more likely that the condition was caused by the Veteran's left ankle disability.

The Board finds that because pes planus was noted on clinical examination in January 1977 for entrance to service, the presumption of sound condition on service entrance does not apply in this case.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b).  The issue thus becomes whether the Veteran's pre-existing pes planus was aggravated by service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153.  Accordingly, "a lasting worsening of the condition"--that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

There is no medical evidence of a permanent increase in severity of the Veteran's pes planus until many years after final service discharge.  In fact, there is no complaints in service of an increase in pes planus, as his feet were normal on evaluation in December 1979, and there is no post-service notation of pes planus until VA evaluation in August 2011.  Moreover, the only nexus opinion on file is against a finding of aggravation due to service.  Consequently, service connection for bilateral pes planus is not warranted.

The Board finds that the Veteran is competent to report that he currently has pes planus.  The Board notes that there is no clinical evidence that he complained of, or sought treatment for, pes planus for a number of years after separation from service.  While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility.  The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  The Board finds that any statement by the Veteran that he has had significant problems with pes planus since service is less than credible when considered with the record as a whole, as it is contradicted by contemporaneous clinical records, to include a finding that the feet were normal on examination in December 1979, shorly before separation from service.  

Although the Veteran may sincerely believe that his pes planus was aggravated by active service, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation as to pes planus as such constitutes a complex medical matter.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  As such, his lay opinion does not constitute competent medical evidence.  The medical opinion of the VA examiner, which provides a rationale for the opinion proffered and is based on clinical expertise and knowledge, is more probative than the opinion of the Veteran.  In the absence of competent credible evidence of chronic aggravation of preexisting bilateral pes planus, service connection is not warranted.  As the preponderance of the evidence is against the Veteran's service connection claim, the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

Left Ankle Disability

The Veteran seeks service connection for left ankle disability as secondary to service-connected left knee disability. 

The Veteran's service treatment records reveal that he was treated for an ankle injury in May 1977 after falling approximately 10 feet from a pole he was climbing.  Although left knee pain and swelling were noted on separation medical evaluation in December 1979, no left ankle disability was reported.

According to an August 2005 private treatment report from Midwest Orthopaedics, the Veteran had ankle pain, which the examiner thought might be due to abnormal walking mechanics.

Chronic left ankle sprain was diagnosed on VA evaluation in March 2009.  X-rays of the left ankle were within normal limits.  After review of the claims files and examination of the Veteran, it was concluded that the left ankle disability was less likely as not causally related to his service-connected left knee disability because the Veteran did not sustain a fracture when he fell from a pole in service and there was no treatment in service for an ankle condition after the fall.  

Chronic left ankle strain was diagnosed on VA evaluation by a different VA health care provider in August 2011.  The examiner concluded that the left ankle disability was less likely as not caused by or a result of his service-connected left knee disabilities because the left ankle disability post-dated the left knee injury by many years.  The evaluator noted that the likely cause of the left ankle disability is the progression of the pes planus deformity of the left foot, as it is well known that foot deformities and their resulting alteration in forces from weight bearing can damage ankles and the joints and ligaments thereof.  Additionally, the examiner concluded that the temporal appearance of the ankle disability appeared to correspond to the progression of the foot disorder rather than that of the knee disorder.

The above medical evidence as a whole does not show that the Veteran has a current left ankle disability due to service-connected left knee disability.  A left ankle disability was not diagnosed until many years after service discharge and VA evaluations in March 2009 and August 2011, which included review of the claims files and examination of the Veteran, determined that the Veteran's current left ankle disability, diagnosed as a sprain in March 2009 and as a strain in August 2011, is not causally related to service-connected left knee disability.  Although there is an August 2005 statement from Midwest Orthopaedics that the Veteran complained of pain around the ankle, which the examiner thought may be due to abnormal walking mechanics, this opinion does not diagnose any specific left ankle disability.  Pain alone does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).

Additionally, the notation that there "may" be a connection between the Veteran's left knee and left ankle disabilities indicates a possibility, rather than a probability, of a causal connection.  Such an opinion is inherently speculative in nature and, thus, of low probative value.  Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by a physician is too speculative).  Consequently, service connection for left ankle disability is not warranted.  

The lay statements from the Veteran have been taken into consideration in this decision.  Although the Veteran is competent to report his subjective symptoms, such as ankle pain, he is not competent to determine the etiology of a disability involving the ankle.  Laypersons are not competent to provide evidence in certain medical situations, such as in a case involving the complex matter of an ankle disorder.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  The Veteran has not been shown to have medical training.

Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection for a left ankle disability, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating Claims

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  

In considering the severity of a disability it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held by the United States Court of Appeals for Veterans Claims (Court) that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation 
from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

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 (2012).  

In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § 4.27 (2012).  

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  See Butts v. Brown, 5 Vet. App. 532 (1993).

The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence.  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). 

The provisions of 38 C.F.R. § 4.40 note that disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40 (2012).

The provisions of 38 C.F.R. § 4.45 provide that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly).  38 C.F.R. § 4.45 (2012).

The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups."  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

Low Back Strain

The Veteran was granted service connection for low back strain by rating decision in March 1983, which assigned a 20 percent rating effective May 10, 1982.  A November 2001 rating decision granted a 40 percent rating effective October 20, 2000.  A claim for increase was received by VA in May 2005.

Under the General Rating Formula for Diseases and Injuries of the Spine ("General Rating Formula"), Diagnostic Code 5237 (lumbosacral or cervical strain) can be evaluated under the following general rating formula for diseases and injuries of the spine:

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:

A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012).

The Veteran was hospitalized at LSU University Medical Center in Ocotber 2007 with complaints of increased low back pain for several days without a new injury, he walked with a cane.  Examination revealed absent bilateral deep tendón reflexes pain with straight leg raising.  X-rays of the lumbar spine in October 2007 reveal mild spondylosis.  Chronic low back pain was diagnosed.  An MRI of the lumbar spine in November 2007 showed a 1.5 mm right paracentral disk protrusión at L5-S1 with thecal sac effacement, abutment of the descending right S1 nerve root, and narrowing of the proximal aspect of the right L5-S1 neural foramen.

When examined by VA in March 2009, the Veteran complained of low back pain with fatigue, decreased motion, stiffness, weakness, and spasm.  He indicated that he had daily pain that was sharp, of moderate intensity, and lasted hours.  There was radiation of pain to the left lower extremity.  There were no incapacitating episodes.  Physical examination revealed antalgic gait and lumbar lordosis.  There was spasm, atrophy, guarding, pain with motion, tenderness and weakness on the left.  Motor evaluation was 4/5 on the left, meaning active movement against some resistance; sensory testing showed decreased sensation in the L5 nerve root of 1/2, meaning impaired.  Range of motion of the lumbar spine included forward flexion to 40 degrees, backward extension to 10 degrees, lateral bending to 10 degrees in each direction, and bilateral rotation to 20 degrees.  There was objective evidence of pain on motion.  There was no additional functional loss after repetitive testing.  

X-rays of the lumbar spine in March 2009 do not show any abnormality.  The diagnosis was chronic strain of the lumbar spine with L5 radiculitis.  The Veteran said that he had stopped working in 2007 due to back disability.  The examiner concluded that the Veteran's low back disability had a significant effect on his usual occupation because it caused problems with lifting and carrying, decreased strength in the lower extremity, and pain.  His low back disability resulted in the assignment of different duties, increased tardiness, and increased absenteeism.  His low back disability had a moderate effect on all daily activities except for sports, with a severe effect, and feeding, with no effect.

The Veteran complained on VA evaluation of the spine in August 2011 of fatigue, limitation of motion, stiffness, weakness, and spasm.  He said that he had had incapacitating episodes but could not afford to see a doctor.  He was able to walk more tan 1/4 mile but less than a mile.  He had an abnormal gait and used a cane to walk.  He had kyphosis.  Physical examination of the lumbar spine did not reveal any spasm or atrophy.  He had guarding of movement, pain with motion, tenderness, and weakness.  Range of motion included flexion to 20 degrees, extension to 5 degrees, lateral bending to 20 degrees to each side, and rotation to 30 degrees on the right and to 20 degrees on the left.  There was no additional limitation after repetitive testing.  X-rays of the low back were reported to be within normal limits.  Low back strain was diagnosed.

It was noted on VA evaluation in January 2013 that the Veteran complained of radicular pain down the left lower extremity.  The Veteran's history included a March 1994 EMG/NCV evaluation, which was reported to be normal.  The examiner noted that the results of a neurological examination in January 2013 were not indicative of lumbosacral radiculopathy or a spinal cord problem.  Based on these findings, the examiner concluded that it was unlikely that the Veteran's urinary bladder/bowel dysfunction was due to his lumbar strain.  

A genitourinary evaluation, including review of the claims files, was conducted in March 2013.  The examiner concluded that there was no evidence that the Veteran's erectile dysfunction or urinary frequency developed in service or is secondary to service-connected disability.  

To warrant a rating in excess of 40 percent for thoracolumbar spine disability, there would need to be evidence of unfavorable ankylosis of the entire thoracolumbar spine.  Although the medical evidence on file shows significant limitation of motion of the thoracolumbar spine, with flexion to only 20 degrees in August 2011, there is no evidence of functional impairment comparable to unfavorable ankylosis, meaning fixation of a spinal segment in flexion or extension, of the thoracolumbar spine.  Consequently, a schedular rating in excess of 40 percent for service-connected low back strain is not warranted.

As noted above, when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness, excess fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements.  See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the schedular criteria do not subsume sections 4.40 and 4.45).  Although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, as in this case, these regulations are not for application.  Johnston, 10 Vet. App. at 84-85.

The Board also finds that a separate compensable rating is not warranted for any neurological manifestations of the Veteran's low back strain because it was concluded on VA evaluation in January 2013and March 2013, after review of the claims files and examination of the Veteran, that the Veteran did not have a neurogenic gait abnormality.  Neurological evaluation in January 2013 was not considered indicative of lumbosacral radiculopathy or a spinal cord problem.

Headaches With Dizziness

The Veteran was granted service connection for headaches by rating decision in January 2006, which assigned a zero percent rating, effective May 17, 2005, under Diagnostic Code 8100.  An October 2009 Decision Review Officer's decision granted a 10 percent rating for headaches with dizziness, effective May 17, 2005, under Diagnostic Codes 8045-8100.  A November 2011 rating decision granted a 30 percent rating for headaches with dizziness, effective November 15, 2010, under Diagnostic Codes 8045-8100.  
During the course of this appeal, the regulations for the evaluation of brain disease due to trauma or TBI under Diagnostic Code 8045 were amended.  See 73 Fed. Reg. 54,693  - 54,708 (Sept. 23, 2008).  The effective date for these revisions is October 23, 2008.  See 38 C.F.R. § 4.124a, Note (5). 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C.A. § 5110(g) ; VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  Therefore, in this case, prior to October 23, 2008, the Board may apply only the previous version of the rating criteria.  As of October 23, 2008, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 

Under the previous regulation, Diagnostic Code 8045 provides for the evaluation of brain disease due to trauma.  38 C.F.R. § 4.124a (2008).  This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code.  Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma.  A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 may not be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  Id.  

Under the amended regulation, Diagnostic Code 8045 again provides for the evaluation of TBI.  38 C.F.R. § 4.124a (effective October 23, 2008).  But now there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical.  Each of these areas of dysfunction may require evaluation. 

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified."  Id.  

Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction.  Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified."  However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table.  Id.  

VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified."  Id.  

VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. 

The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury.  For residuals not listed in 38 C.F.R. § 4.124a, Diagnostic Code 8045, that are reported on an examination, evaluate under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.  Id.  

Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.  Id.  

Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total."  However, not every facet has every level of severity.  The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling.  Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets.  If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. 

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 

Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 

Note (3): "Instrumental activities of daily living" refers to activities other than 
self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. 

Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of a traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned under diagnostic code 8045. 

Note (5): A veteran whose residuals of a traumatic brain injury are rated under a version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008 may request review under Diagnostic Code 8045, irrespective of whether his disability has worsened since the last review.  VA will review that veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045.  A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008.  For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR § 3.114, if applicable.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). 

Under Diagnostic Code 8100, a 0 percent disability rating is assigned for less frequent attacks than for a 10 percent rating.  A 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012).

In determining whether the Veteran experiences the type and frequency of prostrating attacks of headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.)  By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness."  A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness."

The Veteran complained on VA neurological evaluation in October 2005 of headaches and dizziness.  He had almost daily headaches, graded 5-10/10, which lasted from a few minutes to a few hours.  The headaches usually started in the back of the neck.  He also noted photophobia and nausea.  He was not taking any pain medication for his headaches.  The examiner concluded that the Veteran had posttraumatic headaches with dizziness.  

The Veteran complained on VA general medical evaluation on August 9, 2011 of headaches at least once a week that lasted for hours, with more than 50 percent of these headaches being prostrating.  The diagnosis was migraine headaches, which caused increased absenteeism and affected his daily activities because he had to stop and rest when he had a headache.  The examiner concluded that the Veteran's migraine headaches included in rendering him unable to participate in gainful employment.  According to an October 2011 Disability Benefits Questionnaire (DBQ) opinion, which included review of the claims files, the Veteran had chronic posttraumatic headaches with dizziness.  He had weekly headaches that could last several hours.  Some headaches were associated with photosensitivity and occasional nausea.  The headache pain was described as pulsating or throbbing, on both sides of the head, worse with physical activity.  He was not receiving continuous treatment.  The examiner concluded that there was no evidence of worsening of the Veteran's headache disability.  

With respect to the ten facets used for evaluation in TBI cases, it was noted in October 2011 that there was no complaints of impairment of memory, attention, concentration, or executive functions.  Judgment, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness were normal.  There were no subjective symptoms and no neurobehavioral effects.  The Veteran's subjective symptoms involved headaches, including migraine headaches.  He was described as alert, oriented, responsive, and cooperative.  It was noted that the Veteran's headaches could be incapacitating for several hours.  According to the examiner, almost all of the Veteran's physical symptoms were less likely as not related to brain surgery and tumor because the temporal profile of gradual worsening of symptoms through the years was not consistent with the Veteran's treatment history, because many of the physical symptoms appeared more likely related to his depression and anxiety, because neurological testing was normal, and because a structural lesion in the brain would not typically cause intermittent symptoms.  The symptom more likely than not related to TBI was chronic dizziness, as well as the Veteran's intermittent vertigo.
Under the rating criteria in effect prior to October 23, 2008, the Board finds that a rating in excess of 10 percent is not assignable under Diagnostic Code 8099-8045.  As noted above, purely neurological disabilities are rated under the applicable diagnostic code, which does not apply in this case.  Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304.  Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  The Veteran has not been diagnosed with multi-infarct dementia associated with brain trauma at any point during the pendency of the appeal.  

For the period beginning October 23, 2008, the relevant medical evidence does not show symptoms indicative of more than a 10 percent disability under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" because the medical evidence does not reflect an overall disability picture consistent with a level of impairment of "2" (that is, 40 percent disabling) for any one facet.  38 C.F.R. § 4.124a (effective October 23, 2008).  The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination.  Only one evaluation is assigned for all the applicable facets, and a higher evaluation is not warranted unless a higher level of severity for a facet is established on examination.  Based on the TBI findings in October 2011, the Board assigns a level of severity of "1" for all facets because the VA examiners reported normal findings for each facet.  

A rating in excess of 10 percent is also not warranted for headaches with dizziness under Diagnostic Code 8100 prior to August 9, 2011 because there is insufficient evidence of characteristic prostrating attacks averaging more than one in 2 months over the last several months.  In fact, the only relevant medical evidence from May 2005 to August 2011 is the October 2005 evaluation, which has a notation of posttraumatic headaches.  While the Veteran complained of daily headaches in May 2005, he did not indicate that these headaches included prostrating attacks and there is no medical evidence to support this conclusion.  
The Board finds that the evidence more nearly approximates the criteria for a rating of 50 percent for headaches with dizziness beginning on August 9, 2011 because the evidence show the severity of symptomatology that could be considered the equivalent of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  The Veteran complained on VA evaluation on August 9, 2011 of weekly headaches that were prostrating more than 50 percent of the time and the examiner concluded that his headaches rendered him unable to participate in gainful employment.  It was noted in October 2011 that he had weekly headaches that could last several hours, with some headaches associated with photosensitivity and occasional nausea.  As the maximum schedular rating provided under Diagnostic Code 8100 is 50 percent, a rating in excess of 50 percent is not warranted for headaches with dizziness.


Left Knee Disabilities

The Veteran was granted service connection for left knee trauma by rating decision in March 1983, which assigned a noncompensable rating effective May 10, 1982.  A December 1983 rating decision granted a 100 percent temporary total rating (TTR) for service-connected postoperative arthrotomy of the left knee with chipped patella from January 13, 1983 through March 31, 1983 and assigned a 10 percent rating beginning April 1, 1983 under Diagnostic Code 5259.  An August 1986 rating decision granted a TTR for the Veteran's service-connected residuals of left knee trauma from March 15, 1985 through April 30, 1985; the prior 10 percent evaluation became effective again on May 1, 1985 under Diagnostic Code 5257.  A March 1993 rating decision has the Veteran's service-connected residuals of left knee trauma rated 10 percent disabling under Diagnostic Codes 5257-5260.  

A November 2001 rating decision granted service connection for posttraumatic arthritis of the left knee and assigned a 10 percent rating under Diagnostic Code 5010, effective October 20, 2000.  

A veteran can be entitled to a separate 10 percent rating under DC 5003 (degenerative arthritis) if there is non-compensable limitation of motion of the knee and X-ray evidence of arthritis.  In this case, although the Veteran is assigned separate 10 percent ratings for his left knee, X-rays of the left knee in March 2009 and August 2011 do not show evidence of arthritis.  

February 2006 treatment reports from St. Joseph Hospital reveal that the Veteran underwent arthroscopy of the left knee.  Private treatment records for April 2006 reveal left knee flexion to 115 degrees.  It was noted that the Veteran walked with a cane.

According to a January 2008 MRI of the left knee from LSU University Medical Center, there was tiny joint effusion and a tiny amount of fluid within the deep infrapatellar bursa.

The Veteran was provided a VA musculoskeletal evaluation in March 2009.  He complained of giving way, pain, stiffness, and weakness; he did not have instability, incoordination, episodes of dislocation or subluxation, or episodes of locking.  He did note weekly flare-ups that lasted for hours.  Physical examination revealed an antalgic gait.  There was tenderness, weakness, and guarding of movement.  The Veteran had crepitation and grinding.  There was no instability or meniscus abnormality.  Left knee range of motion was from 0 to 90 degrees; there was objective evidence of pain on motion.  There was no additional limitation after repetitive motion.  X-rays of the left knee were considered to be within normal limits.  The diagnosis was left knee chondromalacia patella with arthrofibrosis.  The Veteran's knee disability affected his employability and his daily activities.  He had problems with lifting and carrying, decreased strength in the lower extremity, and pain.  The disability had a moderate effect on all of his daily activities, except for a severe effect on sports and no effect on feeding.

The Veteran complained on VA evaluation of the left knee in August 2011 of deformity, giving way, instability, pain, stiffness, weakness, incoordination, locking episodes several times a week, and weekly flare-ups.  He said that he was unable to stand for more than a few minutes at a time.  He had an antalgic gait.  He wore a knee brace.  Range of motion was from 0 to 110 degrees.  There was no additional limitation after repetitive testing.  X-rays did not show any significant abnormality.  The diagnosis was arthritis with chondromalacia of the left patella, status-post multiple arthroscopic surgeries on the left knee.  It was noted that the disability affected his employment ability and his daily activities.


(1) residuals of left knee trauma

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II (2012). 

Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings from 30 to 60 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5256 (2012).

Diagnostic Code 5257 provides ratings for impairment of the knee that includes recurrent subluxation or lateral instability.  Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012).

Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2012).

Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012).

Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012).  

Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2012) (showing normal flexion and extension as between 0 degrees and 140 degrees).  

Under Diagnostic Code 5262, a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability and a 20 percent is assigned for moderate knee or ankle disability.  38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012).

To warrant a rating in excess of 10 percent for knee disability based on limitation of motion, there would need to be evidence of flexion limited to 30 degrees or extension limited to 15 degrees.  Because the medical evidence shows that range of motion of the lower extremities has been from 0 to at least 90 degrees throughout the appeal period, a rating in excess of 10 percent is not warranted for the left knee under the schedular criteria for limitation of motion.  Additionally, because there is no evidence of ankylosis, dislocation of semi-lunar cartilage, or malunion of the tibia and fibula, a higher evaluation is not warranted under another diagnostic code for the knee.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262.  

As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The medical evidence does not show knee symptomatology that, based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for an increased evaluation at any time during the appeal because there was no additional limitation of motion reported on repetitive testing on evaluations in March 2009 and August 2011.  

In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257 (2012).  The Board would note that the Veteran is currently assigned two separate compensable evaluations for his left knee.  Although the Veteran complained of left knee instability, the medical evidence on file does not show any knee instability.  See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Observing that it is the Board's responsibility to evaluate the probative value of all evidence presented).  

As neither limitation of flexion nor limitation of extension of the left knee is severe enough, by itself, to warrant a compensable evaluation under the rating schedule, a higher rating is also not warranted for this knee disability based on VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004), which involves rating compensable limitation of flexion and extension of the leg as separate disabilities under Diagnostic Codes 5260 and 5261.  


(2) left knee arthritis

Arthritis due to trauma, substantiated by X-ray findings, will be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). 

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, no added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 20 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation.  A 10 percent evaluation will be assigned with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  38 U.S.C.A. § 4 .71a, Diagnostic Code 5003 (2012). 

The Board finds that a rating in excess of 10 percent is not warranted for left knee arthritis under Diagnostic Codes 5010-5003 because there is no X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbation.  In fact, there is a lack of X-ray evidence of arthritis of the left knee and, even if arthritis was shown, it would involve only one major joint.

Additional Considerations

The Board has also considered whether any increased rating claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue 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). 

In this case, the Board finds that referral for extraschedular consideration is not warranted.  As shown in the above discussion, the Veteran's service-connected disabilities of the low back and left knee, as well as his headaches with dizziness, are contemplated and reasonably described by the rating criteria, as noted above.  Id.  The Veteran does not have symptoms associated with any of these disabilities that have been left uncompensated or unaccounted for by the assignment of a schedular rating.  See Thun, 22 Vet. App. at 115.  Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's low back disability, headaches with dizziness, residuals of trauma to the left knee, or left knee arthritis presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  

Consequently, the Board finds that the available schedular evaluations are adequate to rate each disability.  In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Therefore, referral for extraschedular consideration is not warranted for any of the service-connected disabilities at issue.   

Earlier Effective Date Claims

The Veteran and his attorney have contended that an effective date prior to November 15, 2010 is warranted for the grant of TDIU and DEA benefits because the Veteran was forced to stop working in 2007 due to his service-connected back, knee, and headache disabilities.  

At the time of the Veteran's October 2000 claim for an increased rating for his service-connected low back and left knee disabilities, he was assigned a 20 percent rating for low back strain and a 10 percent rating for residuals of left knee trauma; his combined rating was 30 percent.  A March 2001 rating decision denied increased ratings for both disabilities.  A November 2011 rating decision granted service connected for posttraumatic arthritis of the left knee, with a 10 percent rating assigned effective October 20, 2000; granted a 100 percent temporary total 

rating (TTR) due to surgery and other treatment necessitating convalescence for residuals of left knee trauma from July 6, 2000 to August 31, 2000, with a 10 percent rating effective September 1, 2000; and granted a 40 percent rating for low back strain effective October 20, 2000.  The Veteran combined rating effective October 20, 2000 was 50 percent.  The Veteran timely appealed the 10 percent rating for left knee disability.  The Board remanded the case to the RO in January 2004 for additional development.  

Based on the Veteran's May 2005 claim for service connection for headaches and dizziness and claim for an increased rating for service-connected low back strain, a January 2006 rating decision granted service connection for headaches, with a noncompensable rating effective May 17, 2005, and denied an evaluation in excess of 40 percent for low back strain.  The Veteran timely appealed the assignment of a noncompensable rating for headaches and the denial of a rating in excess of 40 percent for service-connected low back strain.  An October 2009 Decision Review Officer's decision granted a 100 percent TTR for residuals of left knee trauma from February 21, 2006 through March 31, 2006, with a 10 percent rating effective April 1, 2006; and granted a 10 percent rating for headaches with dizziness effective May 17, 2005.  A claim for TDIU was received by VA on November 15, 2010.  A November 2011 rating decision granted an increased rating of 30 percent for service-connected headaches with dizziness and granted TDIU and DEA, all of which were effective November 15, 2010.

In order to establish entitlement to TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 3.340, 3.341, 4.16 (2008).  In reaching such a determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice- connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2007); Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The regulatory scheme for a TDIU provides both objective and subjective criteria.  Hatlestad v. Brown, 5 Vet. App. 524 (1993); VAOPGCPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992).  The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation.  Subjective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b).

A claim for a total rating for compensation purposes based upon individual unemployability is essentially a claim for an increased rating.  See Hurd v. West, 13 Vet. App. 449 (2000).  The law with regard to determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a), (b)(2) (West 2002) and 38 C.F.R. § 3.400(o) (2012).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. 
§ 5110(a).  This statutory provision is implemented by the regulation, which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA.  38 C.F.R. § 3.1(r) (2012).

An exception to that general rule applies under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  In that circumstance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had 
occurred, if application is received within one year from such date."  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998).  The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to a higher disability level.  See Hazan v. Gober, 10 Vet. App. 511 (1997).

Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disability is sufficient to produce unemployability without regard to advancing age.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2009).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).  

The Court has made it clear that the question of when an increase in disability is factually ascertainable is answered by the Board based on the evidence in a veteran's VA claims folder.  "Evidence in a claimant's file which demonstrates that an increase in disability was 'ascertainable' up to one year prior to the claimant's submission of a 'claim' for VA compensation should be dispositive on the question of an effective date for any award that ensues."  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).
For the purposes of educational assistance under 38 U.S.C.A. Chapte r 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2012).

According to the Veteran's May 2011 VA Form 21-8940, Veterans Application For Increased Compensation Based On Unemployability, he last worked full time in April 2007 as a security guard for a private company.  He stopped working due to back, left knee, left ankle, headaches, and dizziness. 

It was noted on VA neurological evaluation in October 2005 that it was likely that the Veteran had posttraumatic headaches.  

February 2006 treatment reports from St. Joseph Hospital reveal that the Veteran underwent arthroscopy of the left knee.  Private treatment records for April 2006 reveal left knee flexion to 115 degrees.  It was noted that the Veteran walked with a cane.

The Veteran was hospitalized at LSU University Medical Center in October 2007 with complaints of increased low back pain for several days without a new injury, he walked with a cane.  Examination revealed absent bilateral deep tendón reflexes pain with straight leg raising.  X-rays of the lumbar spine in October 2007 reveal mild spondylosis.  Chronic low back pain was diagnosed.  An MRI of the lumbar spine in November 2007 showed a 1.5 mm right paracentral disk protrusión at L5-S1 with thecal sac effacement, abutment of the descending right S1 nerve root, and narrowing of the proximal aspect of the right L5-S1 neural foramen.

According to a January 2008 MRI of the left knee from LSU University Medical Center, there was tiny joint effusion and a tiny amount of fluid within the deep infrapatellar bursa.
When examined by VA on March 19, 2009, the Veteran complained of low back pain with fatigue, decreased motion, stiffness, weakness, and spasm.  He indicated that he had daily pain that was sharp, of moderate intensity, and lasted hours.  There was radiation of pain to the left lower extremity.  There were no incapacitating episodes.  Physical examination revealed antalgic gait and lumbar lordosis.  There was spasm, atrophy, guarding, pain with motion, tenderness and weakness on the left.  Motor evaluation was 4/5 on the left, meaning active movement against some resistance; sensory testing showed decreased sensation in the L5 nerve root of 1/2, meaning impaired.  Range of motion of the lumbar spine included forward flexion to 40 degrees, backward extension to 10 degrees, lateral bending to 10 degrees in each direction, and bilateral rotation to 20 degrees.  There was objective evidence of pain on motion.  There was no additional functional loss after repetitive testing.  

X-rays of the lumbar spine in March 2009 did not show any abnormality.  The diagnosis was chronic strain of the lumbar spine with L5 radiculitis.  The Veteran said that he had stopped working in 2007 due to back disability.  The examiner concluded that the Veteran's low back disability had a significant effect on his usual occupation because it caused problems with lifting and carrying, decreased strength in the lower extremity, and pain.  His low back disability resulted in the assignment of different duties, increased tardiness, and increased absenteeism.  His low back disability had a moderate effect on all daily activities except for sports, with a severe effect, and feeding, with no effect.

The Veteran was also provided a VA knee evaluation in March 2009.  He complained of giving way, pain, stiffness, and weakness; he did not have instability, incoordination, episodes of dislocation or subluxation, or episodes of locking.  He did note weekly flare-ups that lasted for hours.  Physical examination revealed an antalgic gait.  There was tenderness, weakness, and guarding of movement.  The Veteran had crepitation and grinding.  There was no instability or meniscus abnormality.  Left knee range of motion was from 0 to 90 degrees; there was objective evidence of pain on motion.  There was no additional limitation after repetitive motion.  X-rays of the left knee were considered to be within normal limits.  The diagnosis was left knee chondromalacia patella with arthrofibrosis.  The Veteran's knee disability affected his employability and his daily activities.  He had problems with lifting and carrying, decreased strength in the lower extremity, and pain.  The disability had a moderate effect on all of his daily activities, except for a severe effect on sports and no effect on feeding.

Although it has been contended that the Veteran's TDIU and DEA benefits should be effective in 2007 because the Veteran had to quit his job due to service-connected disabilities, the Board concludes that the evidence on file shows unemployability beginning with the findings on VA spine and left knee evaluations on March 19, 2009.  Forward flexion of the lumbar spine was to only 40 degrees, and there was objective evidence of painful motion of the back and left knee.  It was concluded on the March 2009 evaluations of the low back and left knee that each caused significant impairment due to problems with lifting and carrying, decreased strength in the lower extremity, and pain.

The Veteran indicated on his May 2011 TDIU application that he had been unemployable since April 2007 due to back disability, left knee disability, left ankle disability, headaches and dizziness.  The Board would point out that, as he is not service connected for left ankle disability, this disability cannot be considered in a claim for TDIU.  Moreover, there is very little evidence related to headaches and dizziness prior to August 2011.  Based on the above findings, the Board concludes that entitlement to an earlier effective date of March 19, 2009 is also warranted for DEA benefits.


ORDER

Entitlement to service connection for bilateral pes planus is denied.

Entitlement to service connection for left ankle disability is denied.

Entitlement to an evaluation in excess of 40 percent for service-connected chronic low back strain, to include the assignment of a separate compensable evaluation for neurological manifestations of low back strain, is denied.

Entitlement to an initial evaluation in excess of 10 percent for service-connected chronic posttraumatic headaches with dizziness from May 17, 2005 through November 14, 2010 is denied.

Entitlement to an initial evaluation in excess of 30 percent for service-connected chronic posttraumatic headaches with dizziness from November 15, 2010 through August 8, 2011 is denied.

Entitlement to an initial evaluation of 50 percent for service-connected chronic posttraumatic headaches with dizziness beginning August 9, 2011 is granted, subject to the controlling regulations applicable to the payment of monetary benefits.

Entitlement to an evaluation in excess of 10 percent for service-connected residuals of traumatic injury to the left knee is denied.

Entitlement to an initial evaluation in excess of 10 percent for service-connected arthritis of the left knee is denied.

Entitlement to an effective date of March 19, 2009 for TDIU is granted, subject to the controlling regulations applicable to the payment of monetary benefits.

Entitlement to an effective date of March 19, 2009 for DEA is granted, subject to the controlling regulations applicable to the payment of monetary benefits.



____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs