Citation Nr: 1327883 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 01-07 486 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left leg/knee disability. 2. Entitlement to an initial rating for the Veteran's service-connected headaches and dizziness, rated as 10 percent disabling prior to May 10, 2012, and as 50 percent disabling thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and "L.W." ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from December 1979 to June 1980 and from July 1991 to October 1991. This appeal initially came to the Board of Veterans' Appeals (Board) from December 1992 (headaches) and September 2002 (left leg/knee) rating decisions. In July 2006, the Veteran testified during at a videoconference hearing before a Veterans Law Judge. A transcript from that proceeding is of record and has been associated with claims file. In November 2006, the Board denied entitlement to service connection for a left leg disorder and denied entitlement to a rating in excess of 10 percent for the Veteran's service-connected headaches and dizziness. The Veteran filed a timely appeal to the U.S. Court of Appeals for Veterans Claims (Court), and in July 2008 the Court vacated the Board's decision, remanding the Veteran's claim for development consistent with a joint motion for remand (JMR). In March 2009, the Board again denied entitlement to service connection for a left leg disorder and entitlement to a rating in excess of 10 percent for the Veteran's service-connected headaches and dizziness. In August 2010 the Court granted another JMR, vacating the Board's March 2009 decision and remanding for further development. At that time the Court did note that the Veteran had abandoned his claim for increased compensation for vitiligo. In an August 2012 rating decision, the rating for the Veteran's service connected headaches was increased to 50 percent as of May 10, 2012. The Board remanded the Veteran's claim in February 2011, and then again in November 2012, to ensure compliance with the directives of the JMR. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In October 2012, the Veteran's representative submitted a brief in which the representative suggested that a number of conditions might be service related. Specifically, it appears that the issues of entitlement to service connection for gastroesophageal reflux disease (GERD), entitlement to service connection for a left ankle disorder, entitlement to service connection for depression (an acquired psychiatric disability), entitlement to service connection for an unspecified shoulder disorder, entitlement to service connection for fibromyalgia, entitlement to service connection for hypertension and entitlement to an earlier effective date for service connection for headaches and dizziness were raised but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action, to include seeking clarification with regard to the Veteran's intent to file such claims. In this regard, the Veteran himself is asked to clearly indicate if he is filing such claims as the statement from the representative was very unclear (or, in the alternative, a more comprehensive statement from the Veteran's representative should be submitted). In this regard, it is important to note that this case has been ongoing for many years and raising such claims in such a fashion only increases the chances of further delay. A clear statement of what new claims the Veteran is, or is not raising would be of great assistance to the RO and would greatly reduce delay. FINDINGS OF FACT 1. A chronic left leg/knee disability did not onset during the Veteran's active service and is not otherwise etiologically related to his active service. 2. Prior to March 12, 2012, the Veteran's headaches and dizziness were not shown to result in prostrating attacks occurring on an average once a month over any several month period during his appeal. 3. At no time during the course of the appeal have the Veteran's headaches warranted referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for service connection for a left leg/knee condition have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for an evaluation in excess of 50 percent for headaches and dizziness, to include a rating in excess of 10 percent earlier than May 2012, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran specifically contends that he injured his left leg/knee falling from a flatbed trailer in 1991 while on active duty in Saudi Arabia, and he believes that this alleged injury caused current left leg/knee disabilities. The evidence of record in this case does confirm the presence of current left leg/knee disabilities. Specifically, at a VA examination in June 2004, the Veteran was diagnosed with patellofemoral syndrome of the left knee and with a severe left knee strain. It is also noted that a number of years after service, the Veteran's left lower extremity was found to be shorter than his right and he was fitted with orthotic lifts in his left shoe. However, these conditions (knee strain, patellofemoral syndrome, and leg length discrepancy) are not "chronic diseases" listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that there was a single treatment record in May 2001 which stated that the Veteran was presumed to have degenerative joint disease (DJD) of the knees, ankles and hips, which could be potentially relevant in that DJD of the left knee is a chronic disease. However, the medical professional in 2001 stated only that DJD in the knees was presumed, not that it was objectively shown by radiographic imaging. More importantly, subsequent radiographic testing has not revealed the presence of arthritis in the Veteran's left knee. For example, x-rays in June 2004 showed the Veteran's left knee to be within normal limits with no bone or joint abnormality and unremarkable soft tissue. Similarly, later treatment records do not repeat the DJD diagnosis, but rather attribute the left knee pain to other maladies. As such, the Board concludes arthritis is not present in the Veteran's left knee and therefore 38 C.F.R. § 3.303(b) does not apply in this case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The analysis will now turn to consideration of whether the Veteran's current left leg/knee disabilities can be related to his military service on a direct basis. As noted, it is the Veteran's contention that he injured his left leg/knee in an accident in Saudi Arabia. However, as will be discussed, aside from the Veteran's allegations, there is no evidence to show that he actually did injure his left leg and/or left knee during service, and there is significant evidence suggesting that he did not, in fact, injure his left leg/knee. Additionally, while the Veteran now asserts that he injured both lower extremities during service, the statements he made in the years following service generally suggested that he only injured his right lower extremity. The service treatment records do not describe any left leg/knee injury during service, and the Veteran himself even denied any lower extremity problems at his separation physical where his lower extremities were found to be normal. Specifically, on medical history surveys completed in July 1991 and October 1991, the Veteran denied having ever experienced any knee problems, any bone or joint deformity, and any arthritis, providing factual evidence against this own claim. At a separation physical in October 1991, the Veteran's lower extremities were specifically found to be normal. Following service, there is also little evidence to suggest that a left leg/knee injury occurred in service, and no left leg/knee disability was diagnosed for a number of years. Despite the lack of treatment either in service, or in the years after service, the Veteran continues to steadfastly maintain that he injured his left leg/knee during service; and he is considered competent to report symptoms and injuries that are capable of lay observation, which would include the report of a specific incident. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, VA regulations hold that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Here, however, the Board concludes that the evidence of record is strongly against the conclusion that the Veteran injured his left lower extremity during service. In brief, the service treatment records do not show a left lower extremity injury during service; the service treatment records submitted by the Veteran as evidence of a left lower extremity injury only show treatment of a right lower extremity injury; no post-service treatment was received for any left leg/knee disability for a number of years after separation; and finally the Veteran's statements and testimony are inconsistent and are undermined by the timing of his filings. For example, the Veteran's claim seeking service connection for a left leg and knee condition was received in June 2001. The timing of this is relevant in that the Veteran had filed a claim for several issues, including a right knee disability, within months of leaving active duty in October 1991. Yet, while he filed for a right knee disability at that time, he made no mention of a left knee or leg problem for approximately one decade thereafter, providing some evidence against his claim that he, at that time, believed that he had such problem related to service. Additionally, at a VA examination in September 1995, the Veteran reported that he had injured his right leg just below the knee in service when he jumped back on a truck; but no mention was made of any left leg injury. This is significant in that the Veteran stated that he had bumped his right leg, not that he had bumped his legs (plural), as would be expected if he had struck both legs during the incident. Again, at a critical moment, the Veteran himself provides factual evidence against his own claim. In a 1997 statement, the Veteran recounted many of his physical ailments that he was experiences. On this list, he specifically stated that he was experiencing problems lifting because of his right leg which he had injured in the Persian Gulf. However, once again, he made no mention of any left leg problems or, as one would expect, a bilateral leg problem. The foundation of the Veteran's assertion that his left knee/leg disability is related to his military service is his allegation that he injured his left leg in service and that he has had problems since this injury. However, as described above the Veteran made no mention of any left leg/knee problems or injury in any statements or medical treatment records for a number of years after service, notwithstanding an extensive record of claims and treatment. The Veteran's initial post-service testimony at an RO hearing was also void of any mention of a left leg/knee disability or injury. Since service, the Veteran has testified at hearings before the Board in July 2006 and before the RO in March 1993 and in June 2004. At all three hearings, the Veteran described being involved in an accident during service. However, his reports of the incident have differed, depending on the service connection claim he had pending at the time. For example, at a hearing before the RO in March 1993, in conjunction with a claim for a right lower extremity disability, the Veteran testified that he was loading a flat-bed trailer and jumping up and down and his knee was and caught on the truck and he fell down and said "I hurt my knee." It is noted that knee was singular, and he was clearly referring to his right knee being injured. That is the Veteran did not say I injured my knees (plural) jumping. The Veteran stated that he was taken to the local aid station but that no follow-up treatment was provided and that no x-rays were taken because an x-ray machine was not available. This is highly relevant in that the Veteran's story changed significantly when he testified at a hearing before the RO in June 2004 and again when he testified at a hearing before Board in 2006 in conjunction with his claim for a left leg/knee disability. At the RO hearing, the Veteran testified that he was loading equipment onto a flatbed trailer in approximately July 1991 and tried to jump up on the trailer, but missed and slammed both of his legs against the rail of the flatbed truck, trying to get out of the way of another truck. The Veteran clarified that he was talking about his left knee and below the knee. The Veteran asserted that he did get treatment, indicating that the medical officers had thought it was fractured. He stated that he had a big bruise and was on crutches for approximately two weeks. He stated that while on active duty he had times when his left leg would give out and this eventually impacted his ankle. At the time of the hearing, the Veteran stated that the pain was going from his ankle back up to his knee. At the Board hearing, the Veteran again recounted a lower extremity injury that occurred while loading a flatbed, stating again that he caught both knees. Not only is this testimony a marked departure from his 1993 testimony, but it is patently not supported by the service treatment records. In this regard the Veteran submitted several service treatment records which he argued supported his left leg/knee claim, presumably because they described an injury in service. However, while the service treatment records do suggest that the Veteran injured his right lower extremity during service, they make no mention of the Veteran's left lower extremity. In fact, not only does the service treatment record only describe a right lower extremity injury, the medical officer stated "PT bumped leg while loading vehicles..." (emphasis added). This is the treatment that was rendered only for one lower extremity, not both lower extremities. A detailed review of this record indicates to the Board that this is strong evidence that he did not, in fact, injure his left leg/knee in service. As noted, above, the service treatment records are void of any mention of a left leg/knee injury during service. Not only that, but the Veteran specifically denied any lower extremity problems on his medical history survey completed in conjunction with his separation physical. Additionally, while the Veteran submitted a service treatment record in support of his right knee claim (and then in conjunction with his left leg/knee claim), the record only showed a right knee injury but not a left leg/knee injury. Specifically, the record showed that he was treated for his right knee in October 1991, it was noted that the injury had occurred two weeks earlier and that the right tibia had a 5mm nodule on it, and the Veteran was given light duty for two weeks. Nowhere in the record was any injury to the left knee described. The Veteran resubmitted this record in conjunction with his left leg claim, asserting that the record was evidence of a bilateral leg injury, but a plain reading of the document shows only that the right leg was injured. Here, the contemporaneous evidence, that is the service treatment records which were generated at the time of the incident and do not describe any left leg or knee injury, are considered to have greater probative value than the history as reported by a Veteran years later and in conjunction with a claim for VA benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). The Board acknowledges the Buddy statements that the Veteran submitted in support of his claim, attesting to his high moral character; and to this end, the Board is not suggesting that the Veteran is purposely attempting to mislead VA. However, while the Veteran is not purposely attempting to mislead VA, it is clear that he has had, and continues to have, difficulty remembering events which transpired more than a decade earlier. This is not unexpected, as it may be easy to remember that an accident occurred, or that treatment was rendered, but considerably more difficult to recall the exact details of an incident or what exactly was injured. Yet, it is for this exact reason that the Board attaches greater weight to the service treatment records that were generated in conjunction with the injury in service, and to efforts at recalling details of events which transpired in the distant past. Once again, the contemporaneously generated records only show an injury to the right lower extremity. Also weighing against the Veteran's credibility is the fact that he filed a claim for his right lower extremity within a year of separation from active duty, but did not file a claim for a left leg/knee disability for more than a decade after separation, despite now arguing that the two disabilities stemmed from the same accident in service. The Veteran's testimony in 1993 was very specific that he injured only one knee, and this testimony only changed when he filed a claim for a left leg/knee disability. Additionally, in January 1997, the Veteran listed a number of current ailments, including headaches, weight loss, hair loss, skin discoloration, loss of use of his arms, and emotional problems. He also stated that he was having problems lifting his right leg which he had injured in the Persian Gulf. Thus, while he listed problems with both arms, and a number of other health impairments, he only referenced right lower extremity problems. Given the inconsistencies in the Veteran's statements and the records generated at the time of the Veteran's purported injury, the Veteran's allegation that he injured his left leg/knee in service is found to be not credible. In order to be abundantly clear on this point, the Board, as the designated finder of fact in this case, makes the following factual conclusion: The Veteran did not injure his left leg or left knee while on active duty. The facts make clear that the Veteran is not an always an accurate historian of his disabilities based on events from long ago. In fact, some of his prior statements, as those noted above, provide highly probative factual evidence against his current contentions. The Veteran has pointed to several post-service medical records as evidence of his alleged in-service left leg/knee injury. However, none of the records actually show any injury to the left leg during service. The first record, dated in May 2001, showed that the Veteran was given a physical profile on account of bilateral plantar fasciitis and discordant leg lengths. The Veteran was temporarily restricted from running, jogging, hopping, leaping and skipping for a month until June 2001. Another record from May 2001 noted that the Veteran had been involved in motor vehicle accidents in 1996 and 1997 and that he had previously injured his legs when he fell off a trailer in Saudi Arabia in 1991 (a similar contention was voiced at a February 2001 VA examination). However, these records were not recorded contemporaneously with the Veteran's time in service. Instead they were made nearly a decade after separation, and appear to be based exclusively on the Veteran's own statements, which as noted above are not sufficiently credible to establish a left leg/knee disability injury. As such, these records, while recorded by medical professionals, are considered to be no more than an extension of the Veteran's contentions, and thus they do not establish an in-service left leg injury. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional). The Veteran was provided with a VA examination in June 2004 where the examiner stated, "[a]s to whether this is service-connected, I cannot resolve this issue without resorting to mere speculation. There are no service medical records I could find documenting this injury that [the Veteran] claims he has." Generally, 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). However, the Court has explained that a VA medical examination is not considered inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). While VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Nevertheless, the Court did find in Jones that simply concluding that the etiology of a disability could not be resolved without speculation without providing any explanation why, was inadequate, explaining that the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Here, the examiner noted that the current left lower leg/knee disability could not be related to service, because there was no injury in service to relate it to. The examiner accurately recounted all of the evidence of record, as chronicled above, and he was fully apprised of the Veteran's contention that he injured his left leg/knee during service. However, the examiner ultimately found that he could not relate a current left leg/knee disabilities to service without speculation, because there was no evidence of an in-service left leg/knee injury or treatment for a left leg/knee disability within the years following service. While the Board had not yet determined that the Veteran's assertion of an in-service left leg/knee injury was not credible at the time the examiner rendered his opinion, the fact remains that such a determination has been made now, and the examiner's understanding in 2004 is consistent with the current understanding of the Veteran's military service and the lack of any left leg/knee injury therein. As such, the examiner's conclusion did not reflect the limitations of knowledge of the particular examiner, but rather reflected the evidentiary shortcomings of the Veteran's claim. Therefore, this opinion is not considered to be inadequate. In light of the current factual findings of the Board, a further medical opinion under Jones would serve no logical purpose. Simply stated, this case regards a factual finding to be made by the Board, not a medical determination to be made by a doctor regarding an event in service that, from the facts of this case, did not occur. These facts include some of the Veteran's own prior statements. As described, the claims file does not contain any medical opinion even suggesting that the Veteran's current left leg/knee disability is related to his military service. Thus, the only evidence suggesting that the Veteran's current left leg/knee disability is related to his military service is his own statements (both in written submissions to VA and as told to medical professionals). However, while the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a left leg/knee disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus between his left leg/knee disability and his military service. The JMRs in July 2008 and August 2010 argued that the Board's reasons and bases were inadequate. Essentially, the JMRs pointed to two factors: First, it was argued that the Board had not specifically identified any post-service evidence that found that the Veteran's current left leg/knee disability was unrelated to his injury in service. Second, it was argued that the Board had not specifically discussed the credibility of the Veteran's assertions as to his in-service injury, citing to Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and to Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board endeavored above to provide better reasons and bases, but to address these points again, the Board has concluded that the Veteran is not competent to provide a medical opinion as to the etiology of his current leg/knee disability, and his accounts of an injury in service are not credible/accurate in that they are patently inconsistent with the contemporaneously generated medical evidence and some of the Veteran's own prior statements (as cited above). Additionally, the post-service evidence does not relate the Veteran's left leg/knee disability to his time in service. The JMR in August 2010 stated that the Board had not identified any specific evidence in the post-service medical records that provided evidence against the Veteran's claim, or which indicate that his left leg/knee problems began after service, notwithstanding the above. This request is essentially asking the Board to prove a negative, as there is no credible evidence showing a left leg/knee injury or disability either during service, or for a number of years after service. As described, the post service evidence in this case shows that the Veteran did not receive any treatment for a left leg/knee problem for many years after service and only non-credible statements have been advanced in support of the Veteran's claim. Moreover, an x-ray in December 1995 showed no radiologic abnormality in the left knee at that time and the Veteran himself failed to cite this problem several times. The Board has identified several pieces of evidence which do not describe any left leg/knee problems, and the Court has specifically held that silence in record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). In this case, the Board does not simply have "silence". For example, as noted above, in a January 1997 statement the Veteran described a number of problems which he had been experiencing since service, but did not mention any left leg/knee problems. As such, this statement, like much of the evidence of record, weighs against the Veteran's claim by virtue of its omission of any reference to a left leg/knee problem, at a time when one would have suspected the Veteran would mention such a problem if he was, in fact, experiencing it. Moreover, the Federal Circuit has also held that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the lengthy period without medical complaints does weigh against the Veteran's claim, because the Veteran was not receiving any left leg/knee treatment at a time when he was affirmatively pursuing a claim for a right lower extremity disability and receiving treatment for it. Service connection is not awarded simply based on a finding of a current disability, or on a finding that there is no evidence that the current disability was not related to service. Rather, service connection requires some credible evidence which links a current disability to a Veteran's military service. As described, such credible evidence is missing in this case, the best evidence in this case provides evidence against this claim, some of the Veteran's own prior statements support a denial of this claim, the preponderance of the evidence is against this claim, and the claim is therefore denied. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The Veteran's claim for headaches was received in October 1992. Service connection was initially granted by a July 2000 Board decision. The RO then assigned a 10 percent rating for the Veteran's headaches, effective as of the day after he separated from active duty in October 1991. The Veteran appealed the rating that was assigned, and in an August 2012 rating decision, the rating for the Veteran's service connected headaches was increased to 50 percent as of May 10, 2012. As such, the Board must consider both whether a rating in excess of 50 percent is warranted and whether a rating in excess of 10 percent is warranted prior to May 10, 2012. However, because the 50 percent rating is the highest schedular rating assignable for headaches, the focus of this decision will be on whether the evidence supports a schedular rating in excess of 10 percent prior to May 10, 2012, and on whether an extraschedular rating is warranted at any point during the course of the appeal. The Veteran's headache disability is rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. The Board has reviewed other diagnostic codes and finds this to be the most appropriate code. It is noted that while the Veteran's claim has been the subject of several JMRs, no objection has been voiced regarding the use of Diagnostic Code 8100 to evaluate the Veteran's headaches. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a 10 percent rating is provided for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months; and for a 50 percent is provided for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 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 Board previously denied a rating in excess of 10 percent for the Veteran's service connected headaches in November 2006 and March 2009. JMRs were issued in July 2008 and August 2010. The July 2008 JMR found that while the Board had concluded that the medical evidence of record had not shown prostrating headaches, the Board had not sufficiently discussed the Veteran's assertions that he alleviated his headaches by sleeping, that he missed 20-30 days of work per year due to his headaches, and that when he got headaches he had to lie down in a quiet, dark room to make them go away. The JMR indicated that the credibility of these statements needed to be weighed, and the Board will endeavor to do so below. The JMR in August 2010 again found that the credibility of the Veteran's statements had not been effectively weighed. The following is a chronicling of the evidence of record during the course of the Veteran's appeal. In September 1991, the Veteran complained of experiencing intermittent headaches for approximately one month. An examination was normal. In March 1993, the Veteran testified at a hearing before the RO. He stated that since service he had taken pills and Goody powder. He indicated that no doctor had been able to diagnose his problems. He stated that he experienced the headaches approximately every other day. In August 1994, the Veteran presented at the emergency room at the Dale Medical Center with a complaint of headaches since the AM while running without nausea and vomiting. He was diagnosed with cephalgia. In November 1994, the Veteran complained of headaches for the previous three years. A CT scan of his head was normal. In January 1995, the Veteran was diagnosed with vascular headaches and prescribed bed rest for the rest of the day, with full duty the following day. At a VA neurological examination in September 1995, the Veteran described experiencing throbbing headaches while in service. Since returning, he reported continuing to experience headaches, but indicated that they were intermittent. The Veteran took over the counter medication such as Bufferin or Tylenol for his headaches, and he stated that when the headaches appeared he had to lie down in a quiet dark room. The headaches reportedly disappeared following sleep. A neurologic examination was again normal, and the examiner stated that the headaches did not appear to be migraine in etiology. In November 1995, a reserve treatment record noted headache problems. In April 1996, the Veteran was noted to have experienced headaches for a day after flipping in a truck at 45-50 mph. The Veteran was involved in another motor vehicle accident in June 1996. In May 1996, the Veteran stated that he had lost two weeks of work in 1993 and had experienced weight changes and headaches. In January 1997, the Veteran asserted that headaches caused him to miss approximately 1.5-2 months in 1993, approximately 1 month in 1994, and approximately 1.5 weeks in 1996. Each year resulting in his termination from employment. In February 1999, the Veteran underwent a VA neurological examination. The Veteran reported experiencing headaches every day, but denied any nausea or vomiting. The headaches were alleviated by sleeping. The Veteran denied having received any treatment in the previous two years. He was diagnosed with chronic headaches and dizziness. The examiner stated that his headaches did not appear to be migraine headaches, but were tension headaches that were chronic in nature. The Veteran stated that he had the headaches every day, which lasted for several hours. The examiner suspected that some of the dizziness might be a result of the Veteran's mild hyperglycemia, a non-service connected condition. In June 2000, the Veteran presented for treatment for arm numbness. He stated that he had experienced headaches for 4 days, but denied any history of headaches. In October 2000, the Veteran reported that he experienced headaches twice per week, especially over the back of his head. He again denied any nausea or vomiting. In November 2000, the Veteran stated that he was doing fairly well since his October visit. No new headache complaints were voiced. He asserted that he was entitled to a 30 percent rating for his headaches. At a VA neurological examination in December 2000, the Veteran reported that his headaches had gotten worse and that he experienced multiple headaches throughout the day that caused his eyes to water. He worked as a policeman, but he asserted that he had missed 20 to 30 days a year of work on account of the headaches. He stated that he was a truck driver until losing his job because of the headaches. He indicated that his headaches and dizziness left him weak and fatigued. He also asserted that his headaches had increased in frequency, and stated that the headaches are so bad that he loses his strength. He denied nausea, vomiting, or blurred vision. A CT revealed normal pre and post contrast of the brain. The Veteran stated that his headaches were alleviated by sleep. In June 2001, the Veteran presented for treatment citing continuing problems with headaches. He was assessed with chronic migraine headaches and medication was prescribed to address the condition. In August 2001, the Veteran filed a substantive appeal in which he asserted that his condition met, at the very least, the 30 percent criteria, stating that his migraines were occurring more frequently and were severe. He asserted that he experienced migraine headaches on average once a month over the previous several months. In March 2002, the Veteran was given a trial of Elavil. In September 2002, the Veteran stated that the medical evidence supported a higher rating for his headaches. He asserted that he experienced migraine headaches on average once a month for the past several months. In June 2004, the Veteran testified at a hearing before the RO. He stated that he felt his headaches were worse than when he first was rated for them. He stated that they came and went, sometimes lasting a week. he stated that his headache symptoms did sometimes affect his ability to work, and he stated that he had missed two days of work, and additional work on a previous job. He then stated that he could not work and could not function. He stated that the headaches would occasionally make him late to work. The Veteran underwent another VA examination for neurological disorders in June 2004. There, he denied any nausea, and reported that the frequency of his headaches was about every other day, but somehow lasted for days. However, the Veteran rated the pain at 5 out of 10. There was no mention of prostrating attacks associated with the headaches or dizziness. In fact, the examiner stated that there was no migraine, no tics or paramyoclonus complex, chorea, or choreiform disorders. The examiner categorized the Veteran as experiencing severe tension headaches. In September 2004, the Veteran stated that he had been experiencing headaches 2-3 times per week and felt entitled to the 30 percent rating. In July 2006, the Veteran testified at a hearing before the Board that he had headaches all the time, lasting up to a week. The Veteran was asked how many days in a month he experienced headaches, to which he responded 3, 4, 5 times per month, or more. The headaches also varied in severity. In March 2008 the Veteran again complained of experiencing frequent headaches. In September 2010, the Veteran's former employer noted that while the Veteran was employed as a police officer, he took 2 sick days in the summer of 2005, 4 in the summer of 2007, 5 during 2008, 11 in 2009, and 4 in 2010. In September 2010, the chief of police noted that the Veteran had chronic headaches and had to be released from duty on occasion to deal with them. Another friend stated that she had seen him experience headaches. In this case, the two JMRs have directed the Board to consider the credibility of the Veteran's assertions. However, as described above, in reviewing more than 20 treatment records and statements prior to May 2012, the Veteran rarely, if ever, described the frequency of his headaches the same way. In fact he even denied having any history of headaches in a June 2004 treatment record. The Board is not disputing the fact that the Veteran experiences a headache disorder, as service connection has been granted for headaches, but it is still illustrative of the fact that the Veteran is not consistent when it comes to describing the frequency and severity of his headache symptoms, clearly. As finder of fact, the Board must determine, both the weight and credibility of all the evidence of record. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In weighing credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). In this case, the Board has closely reviewed the pieces of evidence that were identified by the JMRs. As an initial point, while the Veteran has reported frequent headaches, the word prostrating was not used to describe his headaches until his May 2012 VA examination. It is also noted that CT scans were consistently normal, such as in 2000, throughout the course of the Veteran's appeal. It is true that the Veteran reported missing 20-30 days of work at a VA examination in December 2000. However, he also reported in May 1996 that he had lost two weeks of work in 1993, but then in January 1997 stated that he had missed 1.5-2 months of work in 1993 (i.e. 6-8 weeks). Again, the Board is not attempting to minimize the impairment shown by the Veteran's headaches, but rather trying to illustrate the fact that the Veteran's inconsistency (here over a period of less than a year) greatly undermines the weight that may be afforded to his assertions. As noted above within the context of the Veteran's service connection claim for a left leg/knee disability, the Board also found that his recollections of an in-service injury were not credible/accurate. Having reviewed the evidence of record, and the Veteran's contentions as to his headache treatment, the Board does not believe that a rating in excess of 10 percent is warranted for the Veteran's headache disorder prior to May 2012. Such a conclusion is supported by the evidence of record. For example, the Veteran's former employer submitted a historical accounting of the Veteran's sick leave in September 2010 in which noted that while the Veteran was employed as a police officer, he took 2 sick days in the summer of 2005, 4 in the summer of 2007, 5 during 2008, 11 in 2009, and 4 in 2010. That is, the Veteran took 27 sick days over the course of approximately 62 months. Broken down further, on average, he took one day approximately every other month. It is also noted, that there is no indication that each of these absences was on account of headaches, as opposed to other illnesses, but even assuming that each of these sick days was headache related, it still shows a frequency of less than one day every other month. In September 2010, the chief of police noted that the Veteran had chronic headaches and had to be released from duty on occasion to deal with them. This is the most probative evidence of record in this case, given its objectivity, which is relevant in light of the inconsistency of the Veteran's statements over the years as to the frequency and severity of his headaches (as clearly noted above). As defined above, prostrating attacks imply great severity, such that one would be required to lie down and presumably be unable to work. A logical extrapolation from this is the finding that each day off the Veteran took equated to a prostrating attack, since such an attack would presumably require time off from work. It is true that in earlier statements, the Veteran had reported missing 20-30 days per year (such as at his VA examination in 2000), however, as noted he reported missing 1.5-2 months in 1993 in a 1997 statement, but had reported missing only 2 weeks in 1993 in a 1996 statement. Because of the inconsistency in the Veteran's reports as to the days missed from work on account of his headaches, the mere fact that he reported missing 20-30 days in 2000 is found to be insufficient to establish that he actually missed this much time from work (he is simply not consistent). Such a conclusion is supported by the fact that an actual accounting of the days the Veteran missed from 2005-2010 showed significantly less missed work than the Veteran was alleging from 1993-2000, despite his assertion that his headache disability was worsening during this time. As noted, the JMRs also indicated that the Board should discuss the Veteran's allegation that he required sleep to control his headaches. The Board does not dispute that the Veteran has experienced prostrating headaches on occasion and it is for this reason that he has received a compensable rating. However, the mere allegation that sleep is on occasion needed to treat the headaches does not suggest that the frequency of the prostrating headaches were more frequent than every two months. It is important for the Veteran to understand that the problems and symptoms he has cited are the primary basis for the current evaluation of 50 percent. Without taking into consideration the Veteran's complaints, the current evaluation could not be justified, particularly in light of this record. The Board does not find evidence that the Veteran's headaches and dizziness should be increased for any other separate period based on the facts found during the entire appeal period. The evidence of record, from the day the Veteran filed the claim until May 10, 2012 supports the conclusion that the Veteran is not entitled to additional increased compensation during any prior time within the appeal period. In this regard, it is important for the Veteran to understand much of the objective medical evidence of record, and many of the facts of this case, do not support the current findings, let alone a higher evaluation. All evidence of record shows that the Veteran's headaches and dizziness are appropriately evaluated at a disability rating of 10 percent prior to May 2012. The preponderance of the evidence of record is against assigning a rating higher than a 10 percent disability. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). As such, prior to May 10, 2012, the evidence did not establish migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. As such, a schedular rating in excess of 10 percent prior to that date is denied. As noted, a 50 percent rating was assigned for the Veteran's migraine headaches as of May 10, 2012. This is the highest schedular rating available for service connected headaches. As such, the Board must consider whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. Ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from headaches and dizziness. As described, the medical evidence fails to show anything unique or unusual about the Veteran's headaches that would render the schedular criteria inadequate. The Veteran's main symptom is prostrating attacks of headaches which are specifically contemplated in the rating assigned. As such, the criteria reasonably describe the claimant's disability level and symptomatology. However, even if it were concluded that the schedular rating criteria did not reasonably describe his disability level and symptomatology, referral for an extraschedular rating would still not be found as the "governing norms" of an extraschedular rating have not been shown. Specifically the Veteran has never been hospitalized on account of his service connected headaches, and while the headaches have undoubtedly caused interference with his employment, it has not shown to rise to the level of "marked" interference. While "marked" interference is not specifically defined in the rating schedule, the rating that the Veteran receives is based on his experiencing prostrating attacks. Here, the Veteran has missed work, but it appears to be at the approximate rate of the prostrating attacks. As such, these absences are contemplated, and do not constitute marked interference with employment, beyond that contemplated by the schedular rating. Additionally, neither JMR took issue with the Board's conclusion that an extraschedular evaluation was not appropriate in this instance. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran is currently employed, and has been for much of his appeal. While the Veteran did report losing several jobs in the early years of his appeal as a result of headaches, he has not specifically alleged that he is unemployable on account of his service connected headache disability. Moreover, he has been employed in his current job for nearly a decade. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected headache disability. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in October 2003, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. A March 2006 letter also informed the Veteran how disability ratings and effective dates are established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. Moreover, while this appeal has been the subject of multiple JMRs, neither the Veteran nor his representative has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA outpatient treatment records, and private records from Flowers Hospital. The Worker's Compensation records, requested in the recent Board remand were also obtained with a waiver of initial RO consideration. The Veteran was afforded appropriate VA examinations in February 1999, December 2000, February 2001, February 2002, June 2004, and May 2012. As discussed in the body of the decision, the fact that the June 2004 examiner indicated that, based on the evidence of record, an opinion that the Veteran's leg condition is service-connected could not be rendered without resorting to speculation, does not render the examination and opinion inadequate in this case. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs