Citation Nr: 1330484 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 06-21 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disorder, also known as mild diffuse osteopenia with degenerative left facet and mild instability of the lumbar segment of the spine. 2. Entitlement to an increased evaluation for tension headaches (migraines), rated as 30 percent disabling prior to September 18, 2012. 3. Entitlement to an increased evaluation for right knee disability, evaluated as 10 percent disabling prior to September 18, 2012, and 20 percent disabling thereafter. 4. Entitlement to an increased evaluation for a left knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from July 1981 to July 1984, and from May 1987 to July 1995. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The appellant was afforded a hearing at the RO in April 2006 and by videoconference in May 2012 before the Board. The transcripts are of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that VA employees, including Board employees, who chair a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing and pre-hearing conference before the Board, the bases of the prior determinations were noted and the elements of the claim that were lacking were described. In addition, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Evidence obtained at the hearing lead to the Board remand for evidence that would substantiate the claim. As such, the Board finds substantial compliance with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013) and that the Board can adjudicate the claim based on the current record. Following a review of the record, the Board issued a Decision/Remand in August 2012. In that action, the Board denied the appellant's claim for entitlement to an effective date earlier than March 31, 2004, for an increased evaluation for bilateral retropatellar pain syndrome. The remaining issues on appeal were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The purpose of remand was to obtain additional medical evidence along with the appellant's Social Security Administration (SSA) records. The claim has since been returned to the Board for review. Upon reviewing the development that has occurred since August 2012, the Board finds there has been substantial compliance with its remand instructions. In this regard, the Court has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). In this case, the record indicates that the AMC contacted the appellant to obtain any missing VA records and the appellant's SSA records. The AMC also had the appellant undergo additional medical testing. Thereafter, a supplemental statement of the case was issued. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its August 2012 Remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). While the claim was being further developed by the AMC, the disability evaluation for tension headaches (migraines) was increased from 30 to 50 percent, effective September 18, 2012. The criteria used to evaluate the appellant's claim was found at 38 C.F.R. Part 4, Diagnostic Code 8100 (2012). Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). In this instance, the appellant's headache disorder has been assigned the maximum benefit allowed by law and regulation as of September 18, 2012; however, prior to that date, the appellant's claim has continued to be denied. Because the appellant did not withdraw his appeal involving the disability rating greater than assigned, this issue remains in appellate status. With respect to the issues involving higher disability evaluations for right and left knee disabilities, the record reflects that when the appellant's claim was remanded in August 2012, both knee disabilities were rated as 10 percent disabling. Based on the medical information obtained after the remand, the AMC assigned a 20 percent disability evaluation for right knee disability effective September 18, 2012. The disability evaluations that have been assigned to the right knee are less than the maximum available benefits that can be awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACTS 1. While on active duty, the appellant suffered two incidents of low back pain, strain, and discomfort. 2. The appellant currently suffers from a disability of the low back. 3. Medical evidence linking the appellant's current back disorder with the appellant's military service or any incidents therein has not been presented. 4. The appellant's headaches are productive of very frequent, prolonged and prostrating attacks, resulting in economic inadaptability. 5. The appellant's right knee disability is manifested by painful motion throughout the appeal, limited flexion and extension, crepitus, and occasional swelling and tenderness. 6. The appellant's left knee disability is manifested by painful motion throughout the appeal, limited flexion and extension, crepitus, and occasional swelling and tenderness. CONCLUSIONS OF LAW 1. A current low back disability was not incurred in or aggravated or the result of the appellant's military service. 38 U.S.C.A. §§1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for an evaluation of 50 percent, but no higher, for migraines have been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.40, 4.45, 4.12a, Diagnostic Code 8100 (2013). 3. The criteria for an evaluation greater than 10 percent prior to September 18, 2012, for right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.104, Diagnostic Codes 5024, 5260, 5261 (2013). 4. The criteria for a separate 10 percent evaluation, but no higher, for right knee disability manifested by limitation of flexion, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.104, Diagnostic Code 5260 (2013). 5. The criteria for an evaluation greater than 10 percent for left knee disability manifested by limited flexion, have not been met for the entire course of the appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.104, Diagnostic Code 5261-5024 (2013). 6. The criteria for a separate 10 percent evaluation, but no higher, for left knee disability manifested by limitation of extension, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.104, Diagnostic Code 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, d19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the VCAA. The record indicates that the appellant was provided notice numerous letters that have been sent to him from the RO and from the AMC. These letters informed the appellant that VA would assist him in obtaining any documents that it was made aware thereof that would assist in the decision-making process of the claim. He was further told that he could proffer any documents or statements in support of his claim, and that all items would be considered when a decision on the merits of his claim was made. He was also informed how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The law requires that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities the appellant had been treated by, and those other records that VA was made aware thereof, including those of the Social Security Administration (SSA). Given the foregoing, the Board finds that VA has substantially complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the Board did seek to obtain such an opinion concerning the existence and etiology of any found back disorder. Additionally, the appellant has undergone numerous examinations involving headaches and the knees. The reports from those examinations involved a review of the claims folder and the appellant's available medical records, and the results of actual examinations of the appellant. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance that reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the appellant is represented in this appeal and over the course of the appeal, the accredited representative has submitted argument on behalf of the appellant. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). Moreover, the appellant has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Service Connection A. Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2013). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Moreover, a chronic disease may be established by continuity of symptomatology under 38 C.F.R. § 3.303(b) (2013) or based on initial diagnosis after service under 38 C.F.R. § 3.303(d) (2013). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability, which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Secondary service connection will also be established for a disorder, which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show evidence (1) of a current disability; (2) of a service-connected disability; and (3) establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). B. Facts and Discussion The appellant's multiple volumes of claims folders contains VA treatment records, Social Security Administration records, a multitude of VA examination reports, and the appellant's service treatment records. The appellant's service treatment records show that he sought treatment for acute low back pain on two separate occasions. Those same medical records are negative for a diagnosis of a chronic disability of the lumbar segment of the spine to include low back pain. The Board notes that within one year of the appellant's discharge from service in July 1995, the claims files are negative for any treatment for or complaints involving a low back disability of any type, to include arthritis of the back. It was over six years later that the appellant began making complaints involving the low back. A private medical record from October 2008 reports that the appellant underwent fusion of the lumbar spine segments. The records do not show that the surgery was the result of an injury that occurred while the appellant was on active duty; however, the appellant gave a 20-year history of having back complaints. In conjunction with his claim for benefits, the VA sought a medical examination of the appellant in order to determine the etiology of any current back disorder. Such an examination was accomplished in October 2009. Prior to the examination, the appellant told the examiner about the two incidents in service where he hurt his back. He further said that in 2006, the back condition started to become more disabling and productive of increased pain. Upon examination, the examiner noted surgical scars around the lumbar segment of the spine. The appellant's back was limited in its range of motion, and there was tenderness. The examiner provided a diagnosis of status post lumbar fusion L4-L5 with intrapedicular screws at L4-L5 with an interbody fusion grant with chronic pain syndrome. It was further noted that the appellant also had diabetic neuropathic pain. The examiner then wrote: REMARKS AND OPINION: His service medical records had revealed two incidents where he had been seen for acute lumbosacral spine [difficulties]. . . . The service medical records do not reveal any indication of chronic lower back problems or any treatment for ongoing lower back problems. VA medical records had revealed lower back problems in March of 2006 and onwards with other details as dictated above. The veteran has had surgery in October of 2008 for the back problems. As such, it is the opinion of the examiner that his current lower back problems with diagnosis as dictated above is not related to the two episodes of acute lumbosacral strain that he had in the military [on] active military duty. The appellant testified before the Board that while he was on active duty, he injured his back. This assertion is corroborated by the service treatment records that do show that on two different occasions the appellant sought treatment for back pain and strain. Nevertheless, those same service treatment records do not show that there were chronic residuals of those injuries. The appellant has further contended, in writing and through his testimony, that he has continued to suffer from pain and discomfort, and that it is his opinion that his current back disorder is related to the incidents he experienced while on active duty. The appellant has sought treatment over the years for a multitude of disorders, disabilities, and diseases; however, none of the medical records since service contain any type of statement or assertion that would corroborate the appellant's assertions. That is, none of the various medical care providers before whom the appellant has presented himself has ever hypothesized that the current back disability was the result of the appellant's military service or any incident therein. The mere fact that the appellant experienced a couple of occasional bouts of acute back pain in service is not enough to link those incidents with a current disorder. With respect to the Veteran's assertions, the Board must weigh the credibility and probative value of the evidence. The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. The Federal Circuit, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Board does not find the appellant to be a reliable historian as his recollections have been inconsistent. On several occasions, the appellant has given vague statements concerning the symptoms he has purportedly suffered since service. He also was selective in recounting his medical history since service, and the history that he has provided does not correspond to the treatment, or the lack of treatment, he was receiving since leaving the service in 1995. Thus, the appellant's lay assertions on their own cannot be deemed as reliable credible evidence in regard to the appellant's medical history. Rather, the Board must rely heavily on the objective evidence of record to obtain a full and accurate picture of the appellant's medical history and symptoms and disability experienced throughout the years. The objective evidence of record does not show that service connection is warranted for a low back disorder. Moreover, the matter at hand involves complex medical assessments that require medical expertise. The appellant is not competent to provide more than simple medical observations. He can report that he suffers from back pains, restriction of movement, or aching in the low back; however, he is not competent to provide complex medical opinions regarding the etiology of the manifestations. Thus, the lay assertions are not competent or sufficient. In addition, the Board finds the lapse in time after discharge from service to the clinical showing, and in some cases, the not showing, of the purported disorder to be highly probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claims. Based on the foregoing discussion, the Board finds that the claim involving the back must be denied. Hence, because of the facts discussed above, the preponderance of the objective medical evidence of record is against the claims. Therefore, the benefit-of-the-doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Evaluations A. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. Each disability is viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (2013). Medical reports are interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2013). 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. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating is to be assigned. Id. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, 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. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2013). With respect to the issues before the Board, the appeal on each of the issues does not stem from the appellant's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are not for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, the Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, staged ratings may be appropriate. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). The provisions of 38 C.F.R. § 4.40 (2013) state that a disability affecting 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2013). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. B. Facts and Discussion-Migraines Following the appellant's request for an increased evaluation for his service-connected headaches, the appellant underwent a VA Headaches Examination in June 2007. It is noted that the examiner did not review the appellant's medical records or claims file prior to the examination. Prior to the actual examination, the appellant told the examiner that he experienced headaches every day, that they ranged from being mild to severe in intensity and severity, and that to alleviate the headaches, he retired to a dark room. He indicated that the headaches caused throbbing in his head, along with nausea and decreased vision. To treat the headaches, the appellant stated that, in addition to retreating to a dark room, he used high doses of headache medication. After examining the appellant, the examiner wrote that one half or less of the headaches were prostrating in nature, but that they lasted two days or more. The examiner also wrote that the headaches had preventative effects on the appellant's ability to perform daily activities and to accomplish daily tasks. The examination was countersigned by a medical doctor. Another examination was performed in November 2009. On the examination worksheet, the examiner indicated that the appellant's medical records and claims file had been reviewed. The appellant told the examiner that if he had a headache at night, he would take three different medications for the treatment of the headaches and that he would try to go to sleep. If he woke up with a headache, the appellant stated that he also would take various prescription medications to alleviate the symptoms. The appellant complained of experiencing headaches, slight to severe, everyday and that when he has the headaches, they produced pain, nausea, and some dizziness. Upon completion of the examination, the medical doctor diagnosed the appellant as suffering from headaches which moderately to severely affected his functioning. The appellant was told to continue with the use of the four medications that had been previously prescribed. A third examination was accomplished in September 2012. Again, the examiner stated that the appellant's claims file had been reviewed. The appellant described the headaches that he experienced and stated that he would, at the minimum, suffer from three headaches a week and often times had headaches of some type once a day, seven days a week. The appellant further told the examiner that the headaches produced pain, throbbing in the head, nausea, sensitivity to light and sound, and sensory changes. The examiner concluded that the appellant was experiencing prostrating headache pain, that it occurred quite frequently, and that the headaches were prolonged in nature. It was further indicated that the appellant was experiencing migraine headaches and tension headaches and that both types of headaches were producing the same symptoms and manifestations. The examiner concluded with the following statement: Veteran's headaches are so frequent with debilitation requiring complete rest (even with treatment) that he cannot obtain or maintain substantially gainful employment in any capacity (either sedentary or physically active). With further treatment, this may change over the course of 18-24 months. Veteran is on SS [Social Security Administration] disability. Contained in the claims folder are the appellant's VA and private medical treatment records. These records show that the appellant has sought, on numerous occasions, treatment and prescriptions for his headaches. He has over the years, complained of debilitating pain. Although the medications that have been prescribed have changed since 2006, he still must take the prescription medications for treatment. The records also suggest that although the medications treat the headaches and make them less severe, they have not seemed to reduce the number of headaches experienced. Moreover, the medications have not stopped the headaches altogether. When the appellant originally filed his claim for an increased evaluation, his headache disability had been assigned a 30 percent disability rating. This rating remained in effect until September 18, 2012, when the disability rating was raised from 30 to 50 percent. The Board notes that, pursuant to the rating criteria used to evaluate headaches, a 50 percent schedular evaluation is the highest disability rating that can be assigned. In this instance, the question remaining before the Board is whether a disability rating in excess of 30 percent should be assigned prior to September 18, 2002, when the highest schedular rating was assigned. A noncompensable evaluation is warranted for migraine headaches with attacks less often than the frequency of attacks required for a 10 percent evaluation. 38 C.F.R. § 4124a, Diagnostic Code 8100 (2013). A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. Id. A 30 percent evaluation requires characteristic prostrating attacks occurring on an average of once a month over the last several months. Id. A 50 percent evaluation requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. As reported, numerous treatment records have been associated with the claims folder and these records, at the very minimum, corroborate the appellant's account of severity, frequency, and the need of treatment. Moreover, the appellant's statements concerning the frequency of the headaches, the severity of the pain produced by the headaches, and the incapacity that he experiences are credible when compared to the medical evidence of record. The Board considers these statements credible and probative, and they are consistent and plausible with the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); and Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). After considering the evidence of record, the Board finds that the criteria for a 50 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012), prior to September 18, 2012, have been approximated. The evidence dated within the claim period shows that the appellant reports having on average headaches five or six out of seven days each week. Because these headaches occur frequently, some lasting for long periods of time, and result in him having to stop working for periods of time, economic hardship has resulted. In other words, the headaches are productive of severe economic inadaptability. Throughout the appeal period, the appellant's headaches have occurred much more frequently than once per month. It is clear that the criteria for the next-higher, 50 percent rating are more nearly approximated. Even if all elements specified in the rating criteria are not shown, they need not be. 38 C.F.R. § 4.21 (2013). The Board must resolve any remaining doubt in favor of the appellant and find that the 50 percent criteria are more nearly approximated throughout the period of time covered by this claim. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. The veteran is entitled to a 50 percent disability rating for the entire period of time that is covered by his claim. After considering all the evidence of record, including the testimony, the Board finds that the evidence more nearly approximates the criteria for a 50 percent schedular rating for migraine headaches. 38 C.F.R. § 4.7. Concerning the appeal for a schedular rating in excess of 50 percent, Diagnostic Code 8100 does not offer an evaluation in excess of that amount. 38 C.F.R. Part 4 (2012). Moreover, there are no alternate diagnostic codes that would be appropriate for consideration on the facts of this case. C. Facts and Discussion-Knee Disabilities The appellant has been assigned a 10 percent evaluation for his left knee disability. A 10 percent rating has been assigned for his right knee disability prior to September 18, 2012, and a 20 percent rating was assigned thereafter. In April 2006, the appellant underwent an examination of the knees. Before the examination, he complained of pain, stiffness, and instability of both knees. He told the examiner that he took medications to relieve the pain and that he soaked the knees twice a week. It was further that the appellant used braces on both knees and occasionally used a cane for stability. Nevertheless, the appellant also admitted that the knee disabilities did not prevent him from performing his activities of daily living and that they had a minimal effect on his activities. The examiner examined the knees and noted the following: The goniometer measurement of the left and right knee reveals flexion and extension zero to 1400 [sic] with full extension bilaterally. Although it was full range of motion bilaterally, there was pain throughout the range of motion this bilaterally. The left and right knee was stable with a negative McMurray's sign. Lachman's test is negative. There was evidence of painful motion throughout the range of motion process. There was no evidence of fatigue, weakness, lack of endurance or incoordination involving the knees bilaterally. The gait was steady. There was no abnormal weight-bearing. The veteran has no callosities. There was no abnormal shoe wear pattern. There is no edema, redness, ankylosis, heat, guarding of movement or abnormal movement involving the knees bilaterally. There is no history of falls. A diagnosis of retropatella pain syndrome right and left, with mild to moderate functional limitation related to pain was given. The appellant underwent another VA Joints Examination in August 2009. The examination report noted that the appellant was taking prescription medication in order to control the pain in both knees. The appellant complained of instability, pain, "giving away" of the knee, weakness, stiffness, and decreased speed of joint motion. The appellant further stated that he could not stand on either knee for extended periods of time. It was reported that the appellant used both a cane and braces. Range of motion of the knees was measured as follows: Left flexion 0 to 100 degrees Left extension Normal Right flexion 0 to 90 degrees Right extension Normal Pain was shown following repetitive motion. X-ray films showed no acute fracture or dislocation of either knee; however, the same films showed degenerative changes with suprapatellar effusion along with mild narrowing of the medial tibiofemoral space. A diagnosis of retropatellar pain syndrome with limited range of motion of both knees with bilateral degenerative changes was given. The examiner did not provide any findings with respect to functional loss of either knee. Two years later, in June 2011, an examination of both knees was accomplished. Before the examination, the appellant complained of pain and occasional swelling of the knees. He specifically noted that the right knee gave out, swelled, and locked up. Standing and walking on the knee caused pain. He further stated that the left knee swelled up more than the right knee and that the pain in the left knee was more intense. The examiner reported the followings findings with respect to the knees: RIGHT KNEE: One examination there is a 3.5 cm x 1 cm scar below the patella, which is due to an old childhood injury. There is no synovial effusion. There are no signs of acute inflammation. There is no deformity. There is tenderness around the patella and around the lateral joint line. Flexion is 0 to 50 degrees with pain between 40-50, extension is 0 degrees. However, he mentioned that he is unable to bend more due to back pain and some pain in his knee. McMurray sign is negative. There is no laxity. With repetitive movements he complained of pain. Following repetitive movement flexion was 68 degrees and extension 0 degrees. LEFT KNEE: On examination there is tenderness around the patella and along the medial joint line and lateral joint line. There is no evidence of synovial effusion. There are no signs of acute inflammation. There are no signs of acute inflammation. There is no deformity. Flexion is 0-65 degrees with pain between 50-65. Extension is 0 degrees. Again, while moving the left knee he complained of pain in the back and he could not lay down flat on the back for long. . . . McMurray sign is negative. There is no laxity. With repetitive movements he had mild pain. Following repetitive movements flexion was 75 degrees and extension 0 degrees. X-ray films and MRI results were categorized as "within normal limits." Another VA examination of the knees was performed in September 2012. Prior to the examination, the appellant reported recurrent swelling, pain, and "giving out" of the knees, with the left knee being worse than the right knee. Range of motion of the right knee was measured as flexion from 0 to 90 degrees (0 to 80 degrees with pain); and extension was to 10 degrees with pain. Range of motion of the left knee was measured as flexion from 0 to 110 degrees (0 to 90 degrees with pain); and extension was to 10 degrees with pain. With repetitive testing, range of motion of the right knee was measured as flexion from 0 to 80 degrees and extension was to 15 degrees. Range of motion of the left knee was measured as flexion from 0 to 100 degrees and extension was to 10 degrees. The examiner found that there was additional functional loss which included incoordination, swelling, disturbance of locomotion, and less movement than normal in both knees. It was indicated that there was some deformity in the left knee, and there was pain along with tenderness in both knees. Strength was measured as normal. Instability in either knee was not found. Also, subluxation or dislocation of either knee was not found. Imaging of the knees failed to produce signs of arthritis or patellar subluxation. The examiner, however, did note a history of mild degenerative changes, but x-ray films and MRI results failed to corroborate the history. As previously noted, the appellant's right knee disability has been assigned a 10 percent evaluation for retropatellar pain syndrome prior to September 18, 2012, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024. A 20 percent has been assigned for right knee tendonitis effective September 18, 2012, for limitation of extension pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent evaluation has been assigned for the retropatellar pain syndrome of the left knee pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5024. Reviewing 38 C.F.R. § 4.71a, Diagnostic Code 5024-5003 (2013) (degenerative arthritis), this code states that compensation may be awarded (1) when limitation of motion meets the schedular criteria for the joint(s) affected and is objectively confirmed, such as by swelling, muscle spasm, or satisfactory evidence of painful motion; (2) when objectively confirmed limitation of motion is not sufficient to warrant a compensable schedular evaluation, 10 percent is assigned for each major joint or minor joint group affected; (3) when there is no limitation of motion, 10 or 20 percent will be assigned depending on the degree of incapacity, if there is x-ray evidence of 2 or more major joints or minor joint groups. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5260 (2013). Evaluations for limitation of knee extension are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a , Diagnostic Code 5261 (2013). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71 , Plate II (2013). VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14 (2013); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). Under 38 C.F.R. § 4.71a , Diagnostic Code 5257, a 10 percent rating is warranted for slight impairment of the knee due to recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate impairment of the knee due to recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe impairment of the knee due to recurrent subluxation or lateral instability. 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. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45 (2013). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). Additionally, the Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2013). Flexion of the right knee is, at worst, limited to 50 degrees, when considering pain on motion. Although this does not quite meet the criteria for a compensable rating, the Board finds that it more nearly approximates the criteria for a 10 percent rating under Diagnostic Code 5260, particularly when considering pain. Thus, a 10 percent rating, but no higher, is warranted for the entire course of this claim and appeal. Extension of the right knee was basically normal throughout the appeal until the September 2012 examination. At that time, extension was limited to 15 degrees with pain. Prior to this examination, the Veteran's right knee extension did not warrant a compensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261. Effective from September 18, 2012, however, the Veteran's right knee extension warrants a separate 20 percent rating. Although the Veteran has complained of instability over the years, examinations have repeatedly found that there is no subluxation or instability of the right knee. Similarly, there obviously has been no showing of ankylosis or dislocated cartilage with episodes of locking. Thus, separate ratings are not warranted pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, or 5259. Turning to the left knee, the VA examinations of April 2006, August 2009, June 2011, and September 2012 have shown flexion, respectively, as follows: full motion; 0 to 100 degrees; 0 to 65 degrees; and, at worst, 0 to 90 degrees. At each examination, left knee flexion was painful. Thus, because the left knee flexion was painful throughout the course of the appeal, a 10 percent rating is warranted for limitation of flexion pursuant to 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. Left knee extension was normal except at the 2012 examination where extension was limited to 10 degrees. Prior to the September 2012 examination, a separate compensable evaluation was not warranted for limitation of extension. As of September 18, 2012, however, a separate 10 percent rating is warranted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261, because of the 10 degrees of limited extension. Again, although the Veteran has complained of instability over the years, examinations have repeatedly found that there is no subluxation or instability of the left knee. Similarly, there obviously has been no showing of ankylosis or dislocated cartilage with episodes of locking. Thus, separate ratings are not warranted pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, or 5259. In sum, the Veteran's disability picture for the right knee warrants a 10 percent rating for limited flexion for the entire course of the appeal. In addition, a separate 20 percent rating is warranted for the limited extension effective September 18, 2012. Regarding the left knee, a 10 percent rating is warranted for limited flexion for the entire course of the appeal, and a separate 10 percent rating is warranted for limited extension effective September 18, 2012. D. Extraschedular Evaluation The Board has also considered whether the appellant is entitled to an extraschedular evaluation for the disabilities discussed above. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected headaches or knee disabilities is inadequate. A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule for the condition shows that the rating criteria reasonably describes the appellant's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate, the appellant does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the appellant has required frequent hospitalizations for his headaches or knee disabilities. Indeed, it does not appear from the record that he has been hospitalized at all for the disorders. Additionally, there is not shown to be evidence of marked interference with employment solely due to the disabilities. There is nothing in the record which suggests that the disorder markedly impacts his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that these service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disorder, including mild diffuse osteopenia with degenerative left facet and mild instability of the lumbar segment of the spine, is denied. Entitlement to a 50 percent disability evaluation for headaches is granted for the period prior to September 18, 2012, subject to the governing laws and regulations pertaining to the payment of monetary benefits. Entitlement to a disability evaluation greater than 10 percent for right knee disability, prior to September 18, 2012, is denied. Entitlement to a separate 10 percent rating for right knee disability, manifested by limited flexion, effective September 18, 2012, is granted, subject to the governing laws and regulations pertaining to the payment of monetary benefits. Entitlement to a disability evaluation greater than 10 percent for left knee disability, prior to September 18, 2012, is denied. Entitlement to a separate 10 percent rating for left knee disability manifested by limited extension, effective September 18, 2012, is granted, subject to the governing laws and regulations pertaining to the payment of monetary benefits. ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs