Citation Nr: 1333580	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  02-20 245	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUES

1.  Entitlement to service connection for a headache disorder.

2.  Entitlement to an initial disability rating greater than 10 percent for right knee degenerative joint disease and patellar chondromalacia.  

3.  Entitlement to an initial disability rating greater than 10 percent for left knee degenerative joint disease and patellar chondromalacia.  

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 1, 2010.  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active duty service in the United States Air Force from April 1969 to August 1977 and in the United States Army from July 1991 to October 1992.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

The Board remanded the appeal in August 2004 for further development.  

This case was again before the Board in July 2006 for appellate review.  In a July 2006 decision, the Board denied the issues of entitlement to service connection for a headache disorder and service connection for a bilateral knee disorder.  The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2008 Memorandum Decision, the Court set aside and remanded the case for readjudication in compliance with specified directives.  

Upon return from the Court, the Board remanded the appeal in April 2009 for further development.  After completion of this development, the RO granted service connection for a bilateral knee disorder in a February 2010 rating decision, but the Veteran expressed disagreement with the initial ratings assigned for each knee.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues).  The RO continued to deny service connection for a headache disorder.  The case has since been returned to the Board for appellate review.    

During the course of the appeal, in a January 2012 rating decision, the RO awarded the Veteran a schedular TDIU rating under 38 C.F.R. § 4.16(a), effective from June 1, 2010.  The RO notified the Veteran of this decision and apprised him of his procedural and appellate rights, but he did not initiate a timely appeal of the effective date assigned for TDIU.  That is, neither the Veteran nor his attorney filed a timely notice of disagreement (NOD) within one year from the date of the mailed notice of the January 2012 rating disagreement, expressing dissatisfaction or disagreement with the effective date assigned for the TDIU award.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. §§ 20.201; 20.302(a) (2013).  There was also no pertinent evidence received within one year of the issuance of this decision.  Therefore, the January 2012 rating decision is final with regard to the effective date awarded for the schedular TDIU.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2013).  

In the July 2013 attorney brief, the Veteran's attorney requested an earlier effective date for TDIU prior to June 1, 2010.  In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim.  The Veteran must timely appeal the VA rating decision that assigned the effective date in question.  If an untimely freestanding claim for an early effective date is raised, such as the case here, the Court has held that such an appeal should be dismissed.  Id. at 299-300.  In this regard, the July 2013 attorney brief that requested an earlier effective date for TDIU prior to June 1, 2010, would normally constitute a prohibited freestanding claim for an earlier effective date.  

But notwithstanding the above, prior to the January 2012 rating decision that awarded the Veteran a schedular TDIU rating, the Veteran had already raised the issue of an extraschedular TDIU rating under 38 C.F.R. § 4.16(b), effective back to April 2005 (the date he was awarded Social Security Administration (SSA) disability benefits for the knees).  See e.g., January 2011 Veteran's statement; November 2011 Substantive Appeal; April 2011 attorney letter.  The claim for a TDIU under 38 C.F.R. § 4.16(b) is part of the initial rating claim for the knees filed in July 2001.  See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  

Nonetheless, when the RO granted the Veteran a schedular TDIU rating in the January 2012 rating decision, the RO did not address entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) prior to June 1, 2010.  Stated another way, the RO failed to address an important component of the TDIU claim at issue.  Moreover, the Veteran's attorney has asserted that the Veteran is entitled to a TDIU based solely on his service-connected knees effective back to 2005.  See July 2013 attorney brief.  VA's duty to maximize benefits requires VA to assess all of a claimant's disabilities, regardless of the order in which they were service-connected, to determine whether any combination of disabilities potentially establishes special monthly compensation under 38 U.S.C. § 1114(s).  See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008).  Therefore, the issue of entitlement to a TDIU prior to June 1, 2010, is on appeal before the Board.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2010 to 2012, which are pertinent to the present appeal.  However, these records were reviewed by the RO in the July 2012 supplemental statements of the case (SSOCs).  

Finally, the Veteran submitted an additional private medical opinion in July 2013, after certification of his appeal.  However, he waived his right to have the RO initially consider this evidence.  Therefore, the Board accepts this additional evidence for inclusion in the record and consideration by the Board at this time.  See 38 C.F.R. §§ 20.800, 20.1304 (2013).   

The Board will adjudicate the issue of entitlement to service connection for a headache disorder.  However, the increased rating and TDIU claims will be addressed in the REMAND portion of the decision below and are REMANDED to the RO in Albuquerque, New Mexico, for further development and consideration.  

FINDING OF FACT

The Veteran has a migraine headache disorder that began during his first period of active duty service in the 1970s.  


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, the Veteran has a migraine headache disorder that was incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

With regard to the issue of service connection for a headache disorder, a review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of this particular service connection issue.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

With regard to the increased initial rating and TDIU issues on appeal, the Board finds that further evidentiary development is needed and will be discussed herein below.  Therefore, an analysis regarding compliance with the VCAA for these issues is not required at this time.  


Governing Laws and Regulations for Service Connection

Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306.  

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In short, when considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection.  See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991).


Analysis - Service Connection for a Headache Disorder

The Veteran has contended that he has a chronic headache disorder that began either during his first period of active duty service in the 1970s or during his second period of active duty service in the early 1990s in the Persian Gulf.  He has also stated on occasion that his headaches began in 1994, which would have been several years after his service in the Persian Gulf.  He has not been entirely consistent on the precise date of onset of his headaches.  In any event, he now reports frequent headaches, which have worsened over time.  See July 2001 claim; May 2002 VA Form 9; September 2001 VA Persian Gulf examination; March 2002 VA neurological consultation; November 2009 VA neurological examination; July 2012 VA examination.   

Upon review of the evidence of record, the Board concludes that the Veteran is entitled to service connection for a migraine headache disorder.   

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current migraine headache disability.  Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225.  Specifically, in June 2013, Dr. L.R., MD. (initials used to protect privacy), a private neurologist, diagnosed the Veteran with a chronic migraine headache disorder.  Earlier November 2009 and July 2012 VA examiners also assessed him as having tension headaches.  Thus, the Veteran clearly has a current headache disorder.  

Consequently, the determinative issue is whether the Veteran's current headache disorder is somehow attributable to his military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.").  See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).

At the outset, the Board notes that the Veteran's headache disorder is not a listed, enumerated "chronic disease."  See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37.  Thus, in the present case, an analysis under 38 C.F.R. § 3.303(b) for an enumerated "chronic disease" is not warranted.  The Veteran also may not establish continuity of symptomatology for a headache disorder in lieu of medical nexus, as this avenue to service connection is only available for enumerated "chronic diseases."  Walker, 708 F.3d at 1336-37.  Instead, the Board will now turn to an analysis under the three-element test for disability compensation described in § 3.303(a).  That is, diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a).  Walker, 708 F.3d at 1338-39. 

The Veteran's service treatment records from his first period of service in the 1970s do document complaints of headaches.  Upon enlistment in April 1969, the Veteran reported headaches.  However, upon examination, no objective abnormality was found at enlistment.  Thus, the presumption of soundness applies.

The Veteran and his attorney have not contended, nor does the evidence show, that there was a preexisting headache disorder that was aggravated by his military service.  38 U.S.C.A. §§ 1111, 1153 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.304, 3.306 (2013).  See also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003.  They have never proffered any argument or evidence as to a preexisting headache disorder or aggravation thereof, despite this case having already been before the Court.  As such, it cannot be said that the evidence clearly and unmistakably shows that the Veteran had a preexisting headache disorder.  Therefore, the Board's analysis must turn to the issue of whether a current headache disorder was incurred during the Veteran's active service.  See Wagner v. Principi, 370 F.3d 1089, 1094- 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence).  VAOPGCPREC 3-2003 (July 16, 2003). 

The Veteran's service treatment records reveal that the Veteran was treated for frontal headaches above the right eye with a diagnosis of sinusitis in July 1971.  In September 1972 during service, the Veteran was again treated for "severe" headaches.  However, at further examinations dated in October 1972, September 1975, and upon separation in August 1977, the Veteran denied frequent headaches.  Overall, these service treatment records provide some limited evidence in support of the claim.  

The Veteran's service treatment records from his second period of service in 1991 and 1992 also fail to document any complaints, treatment, or diagnosis of a headache disorder.  

Following his active service, VA treatment records dated in October 1997 and May 1999 documented frequent headaches, and a December 1999 VA medical note recorded chronic headaches for years, which may be caused by sinusitis.  A January 2000 VA magnetic resonance imaging (MRI) report of the head was unremarkable.  A March 2000 VA medical note also assessed chronic frontal/temporal headaches, and a July 2001 VA medical note remarked that the headaches may have a migraine component.  A September 2001 VA Persian Gulf examination further diagnosed tension headaches.  The Veteran reported that they began in 1994, which would have been two years after returning from the Persian Gulf.  Additionally, a March 2002 VA neurology consultation noted the onset of headaches in 1991 during his Persian Gulf service, becoming worse and more significant by 1996.  He was diagnosed with chronic vascular headaches.  In addition, July 2002 and October 2003 VA medical notes recorded occasional migraine headaches.  

The Veteran is also competent to report symptoms of headaches during and after his military service.  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  Lay evidence can be probative of the frequency, prolongation, and severity of headaches.  See generally Pierce v. Principi, 18 Vet. App. 440 (2004).  

With regard to a nexus, the record reflects several favorable and unfavorable medical opinions of record.  Holton, 557 F.3d at 1366.  See also 38 C.F.R. § 3.303(a).  

The Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  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 evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

With regard to the negative opinions, a December 2009 VA examiner opined that the Veteran's chronic tension headaches began after his periods of active duty service.  The examiner noted that there was no evidence of treatment or evaluation of headaches during active service.  The examiner believed that the headaches may be due to sinus problems beginning two years after his separation in 1994 or that they may be secondary to cervical spine arthritis.     

A July 2012 VA examiner also opined that that there was neither incurrence nor aggravation of headaches during service.  However, the VA examiner's language is confusing, unclear, and poorly worded.  The VA examiner noted that, after reviewing the claims folder, he could not locate any evidence of treatment for headaches at induction or during service.  He emphasized that the Veteran was inconsistent in presenting the date of onset of his headaches in either 1975, 1990 to 1991, or 1994.  

Both of the above negative opinions of record have significant flaws.  Both VA examiners incorrectly stated there was no evidence of in-service headaches.  As noted above, the Veteran's service treatment records dated in April 1969, July 1971, and September 1972 do in fact document complaints of headaches.  The Court has held that a VA medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information.  Mariano v. Principi, 17, Vet. App. 305, 312 (2003).  The focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" and medical history in rendering a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  In addition, the December 2009 VA examiner possibly attributed the Veteran's headaches to his cervical spine arthritis, but this finding does not comport with the evidence of record.  Specifically, the Board notes that the Veteran was not treated for or diagnosed with cervical spine problems until 2009, yet he was treated for headaches as early as 1997 according to VA treatment records.  A review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion.  Nieves-Rodriguez, 22 Vet. App. at 304.  See also Bloom v. West, 12 Vet. App. 185, 187 (1999).  A medical opinion must support its conclusions with analysis.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  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).  Here, both VA examinations are inadequate.  Both VA examinations also failed to substantially comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Thus, both VA examiner's findings with regard to the etiology of the headache disorder are not particularly probative in this case.

With regard to the positive opinion, in June 2013, Dr. L.R., MD., a private neurologist specialist, diagnosed the Veteran with a chronic migraine headache disorder.  Dr. L.R. also added a July 2013 addendum opinion.  After reviewing the relevant in-service and post-service evidence of record, Dr. L.R. assessed that "it is a greater than 50 percent likelihood" that the Veteran's migraine headaches began in 1971 while he was on active duty.  The in-service headaches were "clearly" migraine headaches.  They were frontal over the right eye with vomiting noted.  Dr. L.R. also stated that the Veteran "may have" continued to have headaches in the 1980s, but there is no medical evidence of record.  The Veteran again began to experience headaches in 1994 after his Persian Gulf service.  Dr. L.R. surmised that the psychological stress during his Persian Gulf service may have subsequently worsened his headaches.  His current headaches were more severe than they were in the 1970s.  As to the inconsistent dates provided by the Veteran on the date of onset of his headaches, Dr. L.R. remarked that it is "not unusual for people to forget the exact time they have headaches."  Dr. L.R. added that the Veteran's headaches may have gone away for a period of time and reappeared in the 1990s.  Dr. L.R. reasoned that this is the cycle that occurs in many, if not most patients, with migraine headaches.  They can appear earlier in life, go away for a period of time, and then reappear.  The Veteran's pattern is not atypical, as some people have 20, 30, or 40 years in between their cycles of migraine headaches.  The Court has held that some chronic conditions are subject to active and inactive stages.  See e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  

Although not fully supported by the evidence of record, the June 2013 and July 2013 private opinions from Dr. L.R. lend some evidence in support of the claim.  Overall, Dr. L.R.'s private opinions were thorough, supported by an explanation, and accurately considered and addressed the Veteran's history and relevant longitudinal complaints.  Dr. L.R. is also a neurology specialist who routinely treats headache disorders.  These private opinions clearly outweigh the flawed VA opinions of record.   

Accordingly, resolving doubt in the Veteran's favor, the evidence supports service connection for a migraine headache disorder.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Subject to the provisions governing the award of monetary benefits, service connection for a migraine headache disorder is granted.  


REMAND

Before addressing the merits of the remaining issues of increased ratings for both knees and a TDIU prior to June 1, 2010, the Board finds that additional development of the evidence is required.  

First, the Veteran should be scheduled for an additional VA examination to ascertain the current severity of his service-connected right and left knee disabilities.  The last VA examination performed for the knees was in November 2009, which was nearly four years ago.  In a May 2010 notice of disagreement (NOD), the Veteran's attorney requested a new VA examination for the knees that addresses the level of additional functional loss caused by the knees during flare-ups.  VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right knee and left knee disabilities.  This examination should also address whether instability or subluxation is present in either knee.  

Second, as discussed above, the issue of entitlement to an extraschedular TDIU rating under 38 C.F.R. § 4.16(b) prior to June 1, 2010, was reasonably raised during the course of the appeal.  See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  Moreover, in the present decision, the Board has awarded service connection for a migraine headache disorder.  As a result, this case must be returned to the RO for the assignment of a disability rating and an effective date for the Veteran's migraine headache disorder.  Subsequently, the RO must then reconsider whether the Veteran is entitled to a TDIU prior to June 1, 2010, which is inextricably intertwined with the assignment of a percentage rating and an effective date for the service connection award.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).  Therefore, the issue of entitlement to a TDIU prior to June 1, 2010, to include on an extraschedular basis under 38 C.F.R. § 4.16(b), is remanded for adjudication by the RO.   

Accordingly, the increased rating and TDIU issues are REMANDED for the following action:

1.  The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service- connected right and left knee disabilities.  He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences to his claims.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  The claims file should be available to the examiner for review.  

The examiner should comment on the severity of the Veteran's service-connected right and left knee disabilities and report all signs and symptoms necessary for rating the disabilities, including the range of motion in degrees and the severity of any recurrent subluxation or lateral instability.  He or she should also state whether the Veteran has dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion or whether there has been the removal of semilunar cartilage.  The examiner should further indicate if there is impairment of the tibia and fibula.

The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors, including additional loss of range of motion.  The examiner should specifically discuss any additional functional impairment that the Veteran experiences during a flare-up or upon repetitive motion.   

In addition, the examiner should discuss the effect of the Veteran's right and left knee disabilities on his occupational functioning and daily activities.  

The examiner should provide a complete rationale for any opinions provided.

2.  After assigning an initial disability rating and effective date for the service-connected migraine headache disorder, the RO should readjudicate the claim for TDIU prior to June 1, 2010, in light of all the evidence of record.  The RO should determine if the Veteran meets the percentage requirements for a TDIU rating under 38 C.F.R. § 4.16(a) prior to June 1, 2010.  

The RO should also consider whether a VA examination is necessary.  

Additionally, if and only if the Veteran does not meet the schedular percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) prior to June 1, 2010, the RO should consider whether the TDIU issue should be referred to the Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) for the period prior to June 1, 2010.

3.  The RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  

4.  After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

5.  When the development requested has been completed, the issue of entitlement to an increased rating for both knees and entitlement to a TDIU prior to June 1, 2010, should be reviewed by the RO on the basis of additional evidence.  If the benefit sought is not granted, the Veteran and his attorney should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  No action is required of the Veteran until he is otherwise notified by the RO.  By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs