Citation Nr: 1336588	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  08-34 789	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for residuals of a head injury. 

2.  Entitlement to service connection for migraine headaches.  

3.  Entitlement to service connection for a scar of the right arm as a residual of a bullet wound. 

4.  Entitlement to service connection for a low back disorder, to include as secondary to service-connected disabilities of the knees.

5.  Entitlement to an initial rating in excess of 10 percent for postoperative residuals of recurrent dislocations of the left knee with osteotomy. 

6.  Entitlement to an initial compensable rating for a left varicocele.  

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.  

8.  Entitlement to basic eligibility for a permanent and total disability rating for pension purposes.  


REPRESENTATION

Appellant represented by:	John V. Tucker, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran served on active duty from July 2000 to July 2004.  His awards include the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, the Air Force Expeditionary Service Ribbon with Gold Border, the Air Force Overseas Short Tour Ribbon, and the Air Force Longevity Service Award.  

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the benefits sought on appeal. 

In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal, a review of which does not reveal any additional documents pertinent to the present appeal except as otherwise stated herein.  

In June 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript thereof is in the claims files.  

Initially, the Board observes that both the Veteran and his attorney have requested that VA have exclusive contact only with the Veteran's attorney.  However, by correspondence in March and October 2012 both were informed that VA is required to provide notice to both the Veteran and his attorney.  

A March 2011 Board decision granted service connection for tinnitus but denied service connection for a seizure disorder and for a bilateral eye condition.  The remaining claims were remanded for further development, including service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder.  

A July 2011 rating decision effectuated the 2001 Board grant of service connection for tinnitus and assigned an initial 10 percent disability rating from May 24, 2006.  Subsequently, a September 2012 rating decision granted service connection for a mood disorder, claimed as PTSD and a bipolar disorder, which was assigned an initial 50 percent rating as of July 5, 2004.  That grant was considered to be a complete grant of the benefit sought, i.e., service connection for an acquired psychiatric disorder, to include PTSD and a bipolar disorder.  Neither the Veteran nor his attorney has expressed disagreement with either the initial ratings or effective dates assigned and, so, these matters are not before the Board.  

At the June 2010 videoconference the Veteran and his attorney mentioned that he was being treated for disabilities of the hips and shoulders.  Pages 14 and 15.  As to this, by RO letter dated May 2, 2013, the Veteran and his attorney were notified that an April 2013 rating decision denied a rating in excess of 10 percent for recurrent dislocations of the right knee, status post osteotomy, but granted service connection for a scar of each knee with each scar assigned an initial noncompensable disability rating.  Also, they were notified that service connection was denied for Ehlers-Danlos syndrome as well as osteoarthritis of the left knee, right knee, left shoulder, right shoulder, right hip, trochanteric bursitis of each hip and each shoulder, loss of cartilage of the thoracic spine (claimed as due to a vaccination), a varicocele of the right testicle, and eczema.  Also, they were notified that entitlement was denied for specially adapted housing, special home adaptation, Dependents' Educational Assistance, and a temporary total rating.  No appeal was taken from that decision.  

In May 2013 the Veteran's attorney noted that he had received the April 2013 supplemental statement of the case (SSOC) and, pursuant to a request, had recently received a copy of the claim files which consisted of several thousand pages.  He requested an extension to reply to the SSOC to July 2, 2013.  By letter dated July 18, 2013, the undersigned VLJ granted an extension of 30 days beginning the date of that letter to submit additional evidence and/or argument.  However, no subsequent evidence or argument was submitted.  

A letter dated July 10, 2013, was received from the Veteran.  It appears that a copy of that letter was not provided by the Veteran to his attorney but attached thereto was a copy of the April 2013 SSOC which bears numerous handwritten comments.  On the last page of the copy of that SSOC he requested another hearing in Washington, D C.  In the letter itself he requested another hearing.  This was construed as a motion for another hearing and by letter of October 2013 the undersigned VLJ denied that motion.  

Also attached was a copy of the first page of the May 2, 2013, RO notice letter, as well as a copy of the envelope with handwritten notations that the letter was not actually mailed until May 6, 2013 (four days after the date of the letter, and as to which the Veteran alleges there was fraud in the delay).  Even if true, he has not alleged that he was in any way prejudiced by any such putative delay. 



FINDINGS OF FACT

1.  The Veteran does not now have any residuals of a head injury and the evidence does not show that the Veteran currently has a right biceps scar from an in-service, grazing, bullet wound.  

2.  Chronic migraine headaches were not incurred during service and are unrelated to military service. 

3.  A chronic low back disorder was not incurred during service and is unrelated to military service, and is not caused or aggravated by service-connected disabilities of the knees.  

4.  The Veteran's postoperative residuals, including osteotomy, for left patellar dislocations are manifested by complaints of pain, and a hypermobile left patella but there has been no actual recurrence of left patellar dislocation or subluxation, there has never been dislocation or subluxation of the actual left knee joint which remains stable, and there is no objective evidence of painful left knee motion. 

5.  The Veteran has never worn absorbent material for urinary leakage due to a left varicocele, had daytime voiding at intervals of between 2 and 3 hours, or awakening at night to void 2 or more times; has not had stricture disease requiring dilatation, has not had marked obstructive symptom, has never been hospitalized or required intermittent intensive management or long-term drug therapy, and does not have actual loss or loss of use of a creative organ.  

6.  The Veteran is service-connected for psychiatric disability, rated 50 percent; recurrent dislocation of the left knee, postoperative osteotomy, rated 10 percent; recurrent dislocation of the right knee, postoperative osteotomy, rated 10 percent; tinnitus, rated 10 percent; and noncompensable evaluations are assigned for a left varicocele, a postoperative left knee scar, and a postoperative right knee scar.  There is a combined disability rating of 70 percent.  

7.  The Veteran is a full-time college student with past work experience in culinary occupations and a restaurant manager, but the combined effect of his service-connected disabilities does not preclude obtaining or retaining substantially gainful employment.  

8.  The Veteran has such impairment of mind or body due to a combination of service-connected and nonservice-connected disabilities that is reasonably certain to continue throughout his life which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for residuals of a head injury, for migraine headaches, and for a right arm scar as a residual of a bullet wound are not met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304 (2012).  

2.  The criteria for service connection for low back pain, to include as secondary to the service-connected bilateral knee disabilities, are not met.  38 U.S.C.A. §§ 1110, 1112, 1137 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310 (2012).  

3.  The criteria for an initial rating in excess of 10 percent for dislocations, left knee, resolved status post osteotomy are not met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5257 (2012).  

4.  The schedular criteria for an initial compensable rating for left varicocele are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.14, 4.21, 4.115a, 4.115b, DC 7525 (2012).  

5.  The criteria for a TDIU rating are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.15, 4.16 (2012).  

6.  The criteria for a permanent and total disability rating for nonservice-connected pension purposes are met.  38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.321(b)(2), 4.15, 4.16, 4.17 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes on VA a obligation to notify claimants of information or evidence needed for claim substantiation prior to an initial unfavorable decision but any timing error may be cured by providing notice followed by readjudication Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  In service connection claims, this duty includes informing a claimant of all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Also, the VCAA imposes a duty to assist claimants by making reasonable efforts to get needed evidence.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

By RO letter in November 2004 the Veteran was informed of what was needed to substantiate the claim for service connection for a low back disorder, varicocele, and bilateral knee disorders and he was given the same kind of notice in May 2006 as to the claims service connection for a head injury, migraines, and a scar on his arm from a bullet wound.  Each letter provided notice of the respective evidence gathering duties and how disability ratings and effective dates were established.  A May 2006 RO letter informed him of what was needed to substantiate his pension claim and of how disability ratings and effective dates were established.  A June 2006 RO letter informed him of what was needed to substantiate the claim for TDIU and of the respective evidence gathering duties and how disability ratings and effective dates were established.  

And all this was prior to the initial adjudication of those claims in August 2007. 
The Board remanded this case in March 2011 for, in part, the provision of VCAA notice as to what is required for claim substantiation for the low back disorder on the basis of secondary service connection and secondary aggravation, as well as to clarify that the VCAA notice for service connection applied to the Veteran's claim for a bullet wound scar of the right, and not the left, arm.  This was accomplished by RO letter of May 25, 2011, to readjudication of the claims in the April 2013 supplemental statement of the case (SSOC).  See Pelegrini and Mayfield, Id. 

As to the claims as to the initial ratings for the left knee disorder and left varicocele, these appeals arise from disagreement with the initial evaluation assigned upon granting service connection.  In such circumstances, the claims have been substantiated and there is no requirement to provide additional VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  See also VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Thus, further VCAA notice is not required in this case and the Board concludes that VA has fulfilled VCAA notification duties.  

Duty to Assist

The Veteran's available service treatment records (STRs) and personnel records have been obtained.  In part, the case was remanded in 2011 to conduct a search with respect to claimed stressors in conjunction with his claim for service connection for psychiatric disability.  However, as service connection has been granted for psychiatric disability, compliance with the 2011 remand as to such search is now moot.  As to his alleged bullet wound scar, he has stated that other than a superficial examination by a medic he did not report or otherwise seek treatment.  He has not otherwise indicated that there exist any records relating to this alleged injury.  The Veteran acknowledged in his May 2006 VA Form 21-0781 (stressor statement) that he had not reported having had an injury from a bullet during service.  Thus, any further attempts to locate supporting inservice documentation would be futile.  

The Veteran's VA treatment records have been obtained and some are contained within Virtual VA.  Also on file are records of treatment for his knees at the Trenton Medical Center and treatment of his right hip at the Tampa Bay Orthopaedic specialists.  A statement from Dr. A. R. addressing knee disability is on file, as is a report of a vocational rehabilitation specialist obtained by the Veteran's attorney.  Records of his claim for Social Security Administration (SSA) disability benefits are on file.  

In April 2008 the Veteran was sent copies of his STRs and service personnel records, as well as his medical records from the Gainesville, VA Medical Center, as he requested in his October 2007 VA Form 21-4138, Statement in Support of Claim.  His attorney acknowledged in May 2013 that he had received a copy of the claims files.  

As to the claim for service connection for head injury residuals the Veteran underwent an extensive VA outpatient treatment (VAOPT) evaluation in 2007 and a VA examination in November 2012.  He underwent VA examination of his low back in March 2005 and March 2012, and of his knees in February 2005, January 2007, September 2011, and March 2012.  VA examinations in 2005 and 2007 included findings as to his varicocele.  

38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  At the videoconference the Veteran's attorney led the questioning of the Veteran, and the presiding VLJ suggested that the Veteran could obtain statements from family, friends or service comrades in support of his service connection claims.  

The issues on appeal were identified and the attorney and the VLJ specifically elicited testimony from the Veteran as to the relevant clinical history and needed elements for service connection and as to the severity of his service-connected disabilities for which increased ratings are sought, as well as the effect such have on his employability.  At the hearing the attorney indicated that a report from a private vocational rehabilitation specialist would be obtained.  That report is now on file.  The contentions set forth by the attorney and the testimony demonstrated actual knowledge of the elements necessary for substantiation of the claims.  Moreover, following the hearing the Board remanded the case to help substantiate the claims, and this included conducting relevant VA examinations.   Also, neither the Veteran nor his representative have alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2).  Thus, the Board finds that, consistent with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

Because the Veteran indicated a willingness to attend a possible VA examination, the case was remanded in 2011, in part, to conduct relevant examinations as to the service connection claims.  Because of contentions by the attorney as to the left varicocele and the Veteran's testimony that his knees had worsened since his last rating examination of the knees, the 2011 remand was obtain recent rating examinations.  He was provided a VA nexus examination as to the claimed head injury residuals in November 2012, and examinations as to headaches and as to his low back in March 2012.  He underwent VA examinations of his knee in September 2011 and March 2012, and of his varicocele in March 2012.  

As to the claims for a TDIU and pension benefits, the Veteran underwent VA psychiatric examinations in October 2005 and again in 2012.  Moreover, records of his claim for SSA disability benefits are on file as is the 2010 report of a private vocational rehabilitation expert (obtained and submitted by the Veteran's attorney).  

As to a TDIU claim the "VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities."  Geib, Id.; Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011); see also Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (the ultimate question of capability of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).  The same is true with respect to the claim for nonservice-connected pension benefits.  

And all this was in substantial compliance with the Board remand.  Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance.  Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).  

While there may be disagreement with the diagnoses or opinions obtained via the VA examinations, the adequacy of the examinations and medical opinions obtained have not been challenged.  The Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged.  See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); and Hilkert v. West, 12 Vet. App. 145, 151 (1999).  

The Board has thoroughly reviewed all the evidence of record.  The Board has an obligation to provide reasons and bases supporting any decision, but there is no requirement to discuss, in detail, all pieces of evidence on file, or submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence); Timberlake v. Gober, 14 Vet. App. 122(2000).  Thus, the Veteran and his attorney must not assume that the Board has overlooked pieces of evidence which are not explicitly discussed herein.  

Background

The April 1999 examination for enlistment was negative as to the Veteran's head, headaches, right arm, and low back except that he had scarring on his right hand and elbow.  In an adjunct medical history questionnaire it was reported that he had taken aspirin for headaches and that he had had a head injury, having been attacked by a dog which required stitches.  

On September 12, 2001, the Veteran complained of having low back pain for the past couple of weeks which sometimes was all over his back but currently he had low back pain on both sides when moving around.  It was noted that he sometimes picked up heavy boxes.  On September 18, 2001, he complained of low back pain for the past 3 weeks which radiated up his back, and the back pain had begun without a specific injury.  The assessment was musculoskeletal low back pain and, because he had microhematuria, a kidney stone was to be ruled out.  Subsequently, an August 2002 bilateral renal ultrasound was normal.  

A clinical record (bearing multiple dates in 2002 and 2003) reflects that the Veteran took Excedrin for migraine headaches.  

In December 2002 the Veteran reported having been assaulted.  He had been punched on the chin and kicked in the right calf two hours earlier by the former boyfriend of his Icelandic girlfriend.  He had only minor chin pain and no tooth pain but felt he had a bruised calf.  On examination he had a small abrasion between his lip and chin and there was mild tenderness to palpation of that area.  He had mild swelling of the right lower extremity and the calf.  The assessment was "minor trauma."  He was provided reassurance and was to be followed up as needed.  

In February 2003, when undergoing counseling for anger management, the Veteran complained of a headache.  

Associated with the Veteran's dental records is a report of a May 2003 Orofacial Pain Examination which shows that he had had "tension headaches/minor migraines" since he was 12 years old.  The number of pain free days he experience per month depended upon his stress level.  After an extensive physical examination he was given Elavil and to continue taking Excedrin for his migraines, as needed.  

During service the Veteran had bilateral osteotomies for recurrent patellar dislocations.  The report of the examination for separation from military service is not on file.  

The Veteran's service personnel records include a September 2002 certificate of achievement for the period from September 2011 to February 2002.  This reflects that he had been deployed to Oman performing "force protection duties as an escort and monitor for over 20 Third Country Nationals."  

In the Veteran's original November 2004 VA claim he reported not having had pre-service low back problems but injured his low back by inservice running and heavy lifting.  

On VA examination in February 2005 the claims files were reviewed.  The Veteran was currently employed.  On examination he had a left varicocele.  Both testicles were descended and normal.  Left knee flexion was to 130 degrees and there was no medial or lateral instability.  There were no signs of inflammation.  His gait was normal, and he walked without a limp.  The pertinent diagnosis was a left testicle varicocele.  

On VA general medical examination in February 2005 the claims files were reviewed.  He complained of constant bilateral knee pain of 6 on a scale of 10, which was aggravated by walking, cold or wet weather.  He could walk a mile without pain but after that his pain was at a level of 9 out of 10.  He denied knee swelling or inflammation.  He did not use a cane, crutches or a walker.  When he had flare-ups his pain was at level of 9.  He did not engage in recreational activities for fear of injuring his knees and took medication for knee pain.  On examination His head was unremarkable.  His posture and gait were normal.  His testicles were descended but he had a left varicocele.  X-rays revealed postoperative knee changes in the tibial and retained screws in the proximal tibial metaphysis with associated changes.  There were no degenerative changes or joint effusion of either knee.  Neurologically, power and muscle tone were 5+ in all limbs and reflexes were 3+ at all joints.  He denied incontinence, dribbling, urinary frequency, and urinary hesitancy.  His testicles were descended but he had a left varicocele.  Active and passive left knee passive flexion were to 130 degrees and passive extension was to 0 degrees.  After 10 maneuvers of flexion and extension he started getting pain, of level 6 out of 10, and stiffness and fatigue with lack of endurance.  There was no lateral or medial left knee instability and ligament tests were normal.  There was no effusion and Lachman's and McMurray's signs were normal.  The diagnoses were a history of recurrent bilateral patellar dislocations requiring surgery with metal fixation, with residual disability, and patellofemoral syndrome.  

On VA spinal examination in March 2005 the Veteran reported that his back symptoms began about 3 years ago during service after lifting a heavy object but he denied current radiation of pain to the lower extremities.  He denied any bladder complaints associated with his low back symptoms.  On physical examination there was no muscle atrophy of the lower extremities.  The diagnosis was low back pain secondary to a low back strain lifting heavy objects about 3 years ago.  

On VA examination of the Veteran's knees in March 2005 it was noted that he his left knee surgery in 2004 had stopped the dislocations of his left patella.  He complained of still having postoperative pain, particularly at the tibial tubercle, and being unable to run, as a result of which he was discharged from service.  He complained of pain at the time of the current examination and still not being able to run.  The pain was worse in cold weather which he estimated to be 7 on a scale of 10 in warm weather, and 4 in cold weather.  He could have flare-ups about twice weekly, and during these he had 50 percent limitation of motion.  He reported having stiffness, fatigability, and daily swelling but no weakness, heat, redness, instability, giving way or locking.  He took medication for pain, as needed.  His right knee was worse than the left.  On bad days, he used a cane.  He no longer had episodes of dislocation or subluxation but did not do a lot of activity, including no running or squats.  He was limited in recreational activities, such as dancing.  

On physical examination the Veteran had no redness, swelling or erythema of the knees.  Range of motion was to 125 degrees and there was a 7 cms. anterior left knee scar.  There was tenderness to palpation over the tubercle and the joint line.  Collateral ligaments were stable to varus and valgus stress at a neutral position and at 30 degrees of flexion.  Both cruciate ligaments were stable.  Medial and lateral McMurray's signs were negative.  He was unable to squat without holding on to something because of the right knee.  He was neurovascularly intact and strength was 4+/5.  The diagnosis was persistent pain, primarily with activities of running, squatting and bending as a surgical residual for dislocating and unstable patella.  

In response to having missed a September 2005 VA examination, the Veteran reported in that same month the he had injured his upper back at his previous job and was still being treated for that injury.  He still had knee pain with stiffness and locking.  

A September 2005 VAOPT record shows that X-rays revealed mild right convex scoliosis of the lower thoracic spine.  

On VA psychiatric examination in October 2005 the Veteran reported that he had graduated from high school and was attending a community college full-time, making "Cs" and would do better but for back pain medication which affected him cognitively.  He worked as a bill collector for a retail store and had hurt his back lifting a big TV at work and was in a dispute over worker's compensation.  On mental status examination his primary complaint was depression.  He had had problems concentrating since he was a child.  His Global Assessment of Functioning (GAF) score was 80.  Generally, he appeared to function at a relatively high level, stating that he had friendships and attended a community college.  He was not currently working because of his back injury.  

A February 2006 VA clinical record shows that the Veteran was nonresponsive and an EEG was nonspecific with respect to etiology.  It was doubted that he had a seizure but perhaps he was crashing from his manic phase and simply needed sleep.  An April 2006 VAOPT record shows that the Veteran denied having received the Purple Heart for having sustained a superficial flesh wound of the arm during service while in combat.  When relating other putative combat stressors as having taken place in Iraq, he was reminded that he had earlier stated that they occurred in Oman, whereupon he changed his recounting to say that the events probably occurred in Oman.  He also reported that his DD 214 had been stolen.  It was noted that the veracity of accounts of his putative stressors was highly suspect given that there was no combat occurring in Oman in 2002.  It was noted that there were many inconsistencies in his reported history.  For example, he reported having enlisted in the Air Force in July 2001 and worked as a cook for 1 1/2 years before being assigned to Combat Control but also reported having been deployed to Oman in September 2001 when he began duties with Combat Control.  His description of multiple combat experiences in Oman was not consistent with the political realities of the time and his stories of heroism might be indicative of grandiosity or narcissism, which was consistent with a bipolar disorder or some characterological disorder.  Also, in a prior interview in December 2005 he reported having served in Iraq, which was proven to be inaccurate, as evidenced by his service record which listed his only out-of-country deployment as being in Oman from January to June 2002.  

In VA Form 21-526, received in April 2006, the Veteran reported that he had had a seizure which had caused him to be unconscious for 1 1/2 days.  

In VA Form 21-0781 (stressor statement) in May 2006 the Veteran stated he had been injured by a bullet during service but had not reported it, and alleged that the scar could be dated by tissue samples.  He further stated that he could not recall any details of that event, or of having been assaulted in Iceland because his memory was sketchy.  

In a VA Form 21-4138, Statement in Support of Claim, in May 2006 the Veteran reported having had a seizure with two contusions just 2 month earlier and that no one knew what caused it.  He had not had any seizures prior to that.  In another statement later that month he said the inservice bullet wound skimmed his right biceps.  

In VA Form 21-8940, Application for Increased Compensation Based on Unemployability, dated in June 2006, the Veteran reported that he was unable to secure or follow a substantially gainful occupation due to psychiatric disability and pain in his low back and both knees.  He had last worked in August 2005 and became too disabled to work in September 2005.  He had 4 years experience in various culinary matters in the military, 3 months work experience as a restaurant manager, and 10 months as a manager in training.  He had left his last job due to disability and did not expect to receive worker's compensation.  In April 2006 he had tried to find employment since becoming too disabled to work in secretarial customer service with a law firm, a Dairy Queen restaurant manager, and in customer service with an online jewelry company.  He had one year of college education and was still attending college classes but he was thinking of changing his major because of psychiatric disability.  In an attachment he reported some of his psychiatric symptoms and related the impact of his disabilities of both knees and his low back.  

On VA examination of the Veteran's knees and varicocele in January 2007 the Veteran's claim file and medical records were reviewed.  He reported that the left varicocele caused some self-esteem issues because it was episodic but it otherwise caused no problems.  He had no pain due to the varicocele and had not had surgery.  He denied lethargy, anorexia, dysuria as well as and urinary frequency, urgency, incontinence, and recurrent urinary tract infections.  He reported having spontaneously passed one kidney stone during service.  He had never been hospitalized for acute nephritis, urinary tract disease or been evaluated for genitourinary malignancy.  He had never needed intermittent or continuous urinary catheterization, dilation or drainage procedure, diet therapy or medications.  On physical examination he had normal testicles with no urethral discharge or testicular mass but he had a small left-sided varicocele.  There was no erythema, warmth, redness or tenderness to palpation.  He had no fistula strains and his testicles were of normal size and consistency.  He had normal peroneal reflexes with good peripheral pulses.  The diagnosis was a left varicocele.  

On examination of the Veteran's knees in January 2007 it was noted following his knee surgery the Veteran had had postservice physical therapy.  He complained of daily constant and unremitting daily pain, which was worse in cold weather, rain and on extensive use as well as walking or standing for prolonged periods.  He also had knee stiffness in cold weather.  He reported having occasional weakness and intermittent swelling when he was on his feet for prolonged periods of time, and used cold presses to treat the swelling.  He had flare-ups about once daily with a severe increase in pain.  He reported having instability, and he had fallen about one year earlier.  He denied having warmth, redness or recurrent subluxation or dislocations.  He also denied any fever or chills and had no other inflammatory arthritis symptoms.  He did not have a prosthetic device but took multiple medications for pain, with some but not complete relief, and medication for back spasms also reportedly helped his knee pain.  He used a cane daily, and at the examination.  He rarely used a crutch and never used a walker.  He was unemployed but attended Santa Fe Community College, studying accounting.  He had missed some schooling due to medical appointments but his schooling was not limited due to his bilateral knee condition.  He continued to undergo physical therapy twice weekly.  As to activities of daily living, he was able to bathe, groom, dress, and toilet without limitation.  He did not engage in activities that required repetitive bending or standing for prolonged times to prevent increased pain.  

On physical examination he had an approximately 3 1/2 inch scar on the tibial region of the left knee, extending linearly, which was about 1/4 to 1/2 inch wide, at it widest, and was without erythema, warmth, redness or breakdown.  He had no edema, effusion, heat, redness or instability of the left knee.  He used a cane as an ambulatory aid and had a slow, deliberate gait which was mildly antalgic.  He had full and painless bilateral knee extension.  Right knee flexion was to 110 degrees and left knee flexion was to 115 degrees, with pain at the ends of these motions.  He had no anterior, posterior, medial or lateral joint instability of either knee.  On repetitive testing there was no limitation due to painful motion, fatigue, weakness, incoordination, and range of motion values were unchanged from base line testing.  However, he did complain of increased pain with repetitive movements.  Lower extremity strength was 5/5 and sensations were normal.  There was tenderness to palpation of the medical aspect of both knees and there was no significant quadriceps or calf atrophy.  

It was noted that a November 2006 MRI revealed a dense metallic artifact, from prior surgery, securing the anterior tibia but the anterior cruciate ligament (ACL) and posterior cruciate ligament (PCL) and the quadriceps insertion to the patella were intact, as were the lateral and medial menisci and the medial and lateral collateral ligaments.  The patella cartilage was normal.  June 2006 X-rays revealed bilateral stable knees with threaded cortical screws in the proximal aspect of each tibia, and the joint spaces were well preserved with no effusion, fracture or dislocation.  The diagnosis was bilateral patella dislocations, status post bilateral osteotomy with continued pain, ongoing physical therapy, and chronic pain medication.  

An April 2007 VAOPT shows that in 2006 the Veteran's friends found him unconscious and he was taken to an emergency room.  He reported that he was diagnosed with a seizure and was told that a blood vessel had burst in his head due to which he now had memory loss.  A May 2007 VAOPT shows that he complained of increased headaches since February 2006.  He had been neurologically evaluated during the February 2006 hospitalization and had been started on medication for possible meningitis and while an EEG showed some diffuse swelling there was no seizure activity.  An MRI revealed multi-focal brain contusions but he had had no aneurysm.  He now reported that he had had migraines prior to his February 2006 hospitalization.  He had had migraines since the age of eight (8), having used aspirin every 2 to 3 days.  It was noted that he had had difficulty dealing with and relating to others after service and had ceased his schooling in December 2006.  He felt that he was too smart for vocational rehabilitation and wanted to go back to school.  He used his father's gym at home, a bow flex machine for the most part.  On physical examination he had 5/5 strength and normal sensations in all extremities.  As to gait and balance, there was no gait deviation.  

Another May 2007 VAOPT record shows that the Veteran underwent an extensive evaluation for possible traumatic brain injury by a poly-trauma team.  After multiple tests were performed the conclusion was that the results did not indicate any specific cognitive deficits.  His history of progressive decline was not typical of a post-concussive syndrome and was more consistent with emotional difficulties.  The report of a "fall/seizure" in 2006 with brain contusion was a more likely etiology of any cognitive impairment than any service -related events.  His presentation was consistent with psychiatric impairment.  Another May 2007 VAOPT record shows that he complained of increased headaches since February 2006 and reportedly had had migraines prior thereto, since the age of 8 for which he took aspirin every 2 to 3 days.  The assessments included low back pain, likely from use of bow flex machine.  Lumbar X-rays in May 2007 were negative.  

A June 2007 VAOPT record indicates that the left varicocele was confirmed by ultrasound but was asymptomatic and no need for correction was indicated unless he had a poor semen quality, which he was advised to check in the future.  

A September 2007 VAOPT record shows that as to the February 2006 event, there had been no firm diagnosis but a physician had suspected an unwitnessed assault or seizure causing head injury.  An October 2007 VAOPT record shows that the Veteran complained of pain and instability of the patellae.  On examination he had poorly developed quadriceps, bilaterally, with hypermobile patellae, bilaterally, but no instability on varus or valgus Lachman's testing.  X-rays revealed both patellae were well position in the trochlear groove.  He was in physical therapy to stabilize his patellae and should continue this on a long-term basis until he could be weaned from crutches.  

A May 2008 VAOPT record, written at the Veteran's request, stated that he continued to have bilateral knee osteoarthritic pain.  He needed crutches to ambulate.  As a result, he now had chronic back and shoulder pain which the treating physician believed was due to overuse and an abnormal gait.  

A June 2008 VAOPT record shows that the Veteran desired braces for his wrists and supports for his elbow and shoulder.  February 2009 lumbosacral X-rays revealed minimal degenerative changes.  

In VA Form 21-526, Application for Compensation and/or Pension, in July 2009 the Veteran reported that he was born with a connective tissue disease which was severely aggravated during his active service.  His bone density was low due to inability to exercise to normally increase muscle mass.  

An October 2009 VAOPT record shows that the Veteran presented to the Rheumatology clinic for degenerative arthritis associated with Ehlers-Danlos syndrome.  Also in October 2009 he denied having urinary frequency, dysuria, and gross hematuria.  An April 2010 VAOPT record reflects impressions of early DJD secondary to benign joint hypermobility syndrome.   An April 2010 clinical note reflects that he reported having a congenital condition of "soft joints", described as Ehlers-Danlos syndrome.  

At the June 2010 videoconference the Veteran testified that he had lateral instability of his knees and that without braces he had difficulty carrying his weight.  He had a sensation of bone-on-bone grinding in the knees which was worse in cold or wet weather, and now used Canadian crutches prescribed by a VA physical therapist.  Page 5 of that transcript.  He had used these crutches for about 3 years for stability, and prior to that he had used canes.  Page 6.  With the crutches he could not stoop, crouch or bend over.  He was not able to carry any paperwork with him without wrinkling the paper and while using the crutches he could only carry a can of soda.  Page 7.  His knees had become more unstable since his inservice surgery and he had daily, non-stop bilateral knee pain.  Page 9.  He even had knee pain when sitting, for which he had to elevate his knees, and had increased knee pain with joint motion.  Page 10.  He knees sometimes locked, typically in cold weather, but the knees became more unstable in warm weather.  Page 11.  The attorney requested a 30 percent disability rating for each knee based on severe instability and a separate 50 percent rating for limited extension, although pain also limited flexion.  Page 15.  It was asserted that he had extension limited to 45 degrees in the knees because he had pain at any degree of extension.  Pages 16 and 17.  

As to his varicocele the Veteran testified that this was more a self-esteem and confidence issue, particularly as to intimacy with his fiancée.  There were times when it was really inflated, and at other times it was not.  If felt like a sac of worms.  Page 17.  It caused some discomfort when urinating, on a daily basis.  Raising his legs eased his pain and pressure.  Pages 17 and 18.  He had difficulty beginning and continuing urinating.  The Veteran's attorney requested an evaluation under Diagnostic Code 7120 because of edema (or swelling) with relief of symptoms upon elevation of his legs.  Pages 20 - 22.  The Veteran further testified that he had swelling about 20 times monthly, on an average of every other day.  Page 22.  He continued to have monthly testicular check-ups.  Page 23.  He had moderate difficulty urinating.  The sac like feeling in his scrotum varied according to his blood flow.  He would initially have numbness at that site which would change to an ache.  It also interfered with his bowel movements, because the sensation interfered with his concentration.  Page 24.  

As to his PTSD claim (as it relates to his claimed bullet wound) the Veteran testified that he had been in combat and received combat pay.  Pages 28 and 29.  He had received a grazing bullet wound of the right arm while in Oman.  He had gotten an Achievement Medal in Oman, because while he had been in the Air Force, he had been attached with the Army.  Page 31.  During service he had run a base mess hall and, so, after service he tried running a restaurant but had difficulty dealing with people due to psychiatric symptoms.  Page 34.  From the bullet wound he had scarring on the mid-biceps of his right arm.  He had had his M-16 with him at the time and the heat from the bullet had cauterized the wound such that there was minimal blood loss.  He had been more upset that his uniform was no longer clean.  He had not sought treatment.  Page 59.  A field medic had looked at the wound but said there was nothing to worry about and he was not even told to apply antibiotics.  Page 60.  The presiding VLJ suggested that the Veteran submit any letters he had written home which might have described the injury and the Veteran indicated that he would search for such (but no such letter has ever been submitted).  Pages 60 and 61.  It was also suggested that he submit any buddy statements.  Page 63.  

As to his migraines, the Veteran testified that they started right after March or April 2002, such that he could not be around a light of light or noise and for which he started taking Excedrin Migraine.  Page 46.  He had not brought this up with physicians during service because he felt he had it under control.  He could not relate the initial onset of migraines to a particular inservice event but they might have started after his exposure to loud noises and explosions.  He also testified that he might "have knocked my head around a couple of times" which might have started the migraines but he was not entirely sure when or what event initially triggered them.  When asked if he had had similar headaches prior to service he said "No."  Page 47.  His migraines had become worse after his "seizure" (in 2006).  Page 48.  At discharge from active service he had complained of headaches but he was not sure if this had been recorded.  Page 49.  During service (in Iceland) he had been struck in the face by a man but all it did was remove some skin from his chin.  Page 50.  He now still had headaches, for which VA prescribed medication.  Page 53.  He denied now having a seizure disorder (or any recurrence of the loss of consciousness in 2006).  Page 54.  He did not now know the cause of what had caused his seizure (in 2006).  Page 55.  When treated after being assaulted in Iceland, he had seen an "EMS" person and band-aids and gauze pads were applied.  Page 55.  

As to the low back claim, the Veteran testified that he had extensive inservice training and experience low back pain for which he was given muscle relaxers while at MacDill in May 2001.  Page 65.  He still had low back problems when discharged from service.  Page 66.  The Veteran's attorney, citing a May 2008 VA physician's statement, argued that a current low back disability was either of service origin or was secondary to the service-connected disabilities of the knees; or possibly the knee disabilities aggravated the low back problem which had its onset during service.  In support, the attorney quoted language from a March 2005 VA examination report (that inservice heavy lifting had caused diagnosed low back pain).  The Veteran testified that his knee problems impacted his low back.  Page 68.  

As to the TDIU claim the Veteran's attorney indicated that a report of a vocational expert would be obtained and submitted.  Page 61.  The attorney argued that the Veteran was unable to engage in a full range of sedentary work because he was not able to sit in a working position due to his knees and back.  He was also unable to lift up 10 lbs., stoop, or even sit for prolonged periods of time.  Page 73.  The Veteran testified that he had once applied for VA vocational rehabilitation but had not followed up.  Page 77.  He further testified that he had side-effects form his medications, in the form of dizziness and grogginess, as well as sinus congestion which in turn triggered migraines.  Page 78.  He also took medication for irritable bowel syndrome (IBS) which caused heartburn.  The IBS cause alternating constipation and diarrhea.  Page 79.  

On file is a photocopy of a statement from J.S. in which it was reported that he had first met the Veteran at Camp Wolverine in Kuwait in January 2004, prior to J.S.'s tour of duty in Iraq.  He met the Veteran again in 2005 at a local community college and ascribed the Veteran's behavior to having seen too much action in the war.  

A July 2010 report of a Vocational Rehabilitation Evaluation of the Veteran by the Heitler and Associates Rehabilitation and Vocational Evaluation Consultants is on file.  The Veteran was referred by his attorney and the evaluation was to assess residual vocational handicaps from medical problems that occurred during military service and the impact of the handicaps on future vocational development.  

It was reported that the Veteran was unemployed.  He had attended a community college from 2005 to 2007 and was now a full-time study majoring in biochemical engineering with a grade point average of 3.2.  He stated did not attend to household chores due to pain in his back and knees.  His complaints included pain of the knees, shoulders, right hip, and low back pain, as well as nightmares, irritable bowel problems, dizziness, and nausea.  He reported having to elevate his legs throughout the day, and having to use knee braces and Canadian crutches, although his back brace was too small.  He took multiple medications and the side-effects were light headedness, constipation, and drowsiness.  As to extent of limitations as to certain activities, there were none as to lifting, carrying, pushing, pulling, responding, speaking, and comprehending.  He had limitations as to standing, walking, running, sitting, climbing, stooping, bending, kneeling, driving, and balance.  His employment history was reported and reflects that he had work experience as an office manager, and cashier.  Testing show he was in the average range for general learning ability, numerical, verbal and form perception, clerical perception.  With his work experience as a guide his current likely level of academic functioning would be between the 7th and 8th grade levels.  The evaluator found no evidence of malingering or attempts to suppress scores.  His past relevant work had been semi-skilled and unskilled in nature and he was not engaged in avocational activities that would be income producing.  The Veteran reported that he could not work due to his medications, lack of mobility, and problems dealing with people.  No vocational alternatives could be identified.  Intellectually, he should be able to succeed at college leve studies but due to his physical and mental problems it was doubted that he would be able to obtain a 4 year degree.  His vocational assets and liabilities were listed and it was noted that he was treated by VA for physical and mental problems and it concluded that "due to his service connected disability [he] is unable to secure and follow a substantially gainful occupation."  

An August 2010 decision of an Administrative Law Judge (ALJ) denied the Veteran entitlement to SSA disability benefits.  It was noted that state agency psychologists in 2008 had found that the Veteran's psychiatric disability imposed moderate difficulties in maintaining social functioning and mild difficulties in maintaining concentration, persistence, or pace but no restrictions as to activities of daily living and did not cause episodes of decompensation.  A physician's examination in December 2008 found that his gait was normal and he could walk on his heels and toes without difficulty.  There was no difference when he walked with as well as without crutches.  He needed no help getting on and off the examining table and could arise from a chair without difficulty.  He had full range of motion of the cervical and lumbar spinal segments and all extremities.  The physician opined that the Veteran had no significant physical restrictions.  However, two medical consultants felt that he was restricted as to lifting and carrying weights and as to standing, sitting or walking for 6 hours in an 8 hour workday.  The ALJ found that the osteoarthritis of the knees, migraines, and DJD of the right shoulder and right hip were non-severe and imposed no significant work-related limitations.  It was accepted that the Veteran had no transferrable skills from past work and was unable to perform past relevant work.  However, a vocational expert testified that the Veteran would be able to perform the requirements of occupations, such as a motel housekeeper, parking lot attendant, and mail clerk.  The ALJ concluded that in light of the Veteran's age, education, work experience, and residual functional capacity, he was capable to making a successful adjustment to other work that existed in significant numbers in the national economy such that a finding of "not disabled" was appropriate.  

A brief September 2010 report by Dr. A. R. reflects that the Veteran had no ankylosis of the knees and no limitation of extension or flexion of the knees but had severe lateral patellar subluxation.  There was no malunion or nonunion of the tibias or fibulas.  No detailed physical examination findings were reported. 

A May 2011 VA Form 21-0820, Report of General Information, reflects that the Veteran called and reported that he was not assigned to an Army or Army National Guard unit while overseas.  He stated that there were no records of his gunshot wound but he was grazed in the arm by a bullet while at Camp Wolverine and a medic had said he would be fine.  A June 2011 VA Form 21-0820 shows that the Veteran's service comrade, J. S., called and stated that he had served with a person with the same first and last names as the Veteran but he was not sure if the Veteran (in this case) this was the same person.  

On VA examination of the Veteran's knees in September 2011 he reported having increasing pain in the right knee and worsening patella tracking despite physical therapy.  He reported having subluxation of each patella when he did not use his knee braces.  He did not report that flare-ups impacted the function of his knees.  On physical examination right knee flexion was to 140 degrees and there was no objective evidence of painful flexion.  He had full and painless right knee extension.  Left knee flexion was to 140 degrees and there was no objective evidence of painful flexion.  He had full and painless left knee extension.  After three repetitions of motion there was no change in the degree of flexion or extension of either knee.  It was noted that he did not have any additional limitation of range of motion of the knees after repetitive-use testing.  However, it was reported that he had functional loss or impairment due to painful motion of the knees.  He had tenderness or pain to palpation of the joint line or soft tissue of the knees.  Strength in flexion and extension was 5/5 in each knee.  He had normal stability of the each knee upon testing of anterior instability (Lachman test), posterior stability (Drawer test), as well as medial and lateral stability (Apply valgus/varus test).  He had a history of slight recurrent patellar subluxation or dislocations of each knee.  He had never had shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment.  He had not had any menisceal condition or surgery.  As a residual of past knee surgery he had subjective patellae instability.  His postoperative knee scars were not painful or unstable and the total area of the scars was not greater than 39 square centimeters (6 square inches).  He constantly used braces and canes to walk.  It was reported that degenerative and traumatic arthritis were not radiologically documented and that there was no X-ray evidence of patellar subluxation, and that his knee disabilities did not impact his ability to work.  

On VA examination of the Veteran's hips in September 2011 the Veteran reported that his hip pain began 2 years ago and that physical therapy for his hips had not helped.  After a physical examination, it was opined that the Veteran had trochanteric bursitis secondary to tight iliotibial bands, bilaterally, which had no pathophysiological or anatomical relationship to his subjective patellar instability and, thus, the two were not related.  

On VA Form 21-4138, Statement in Support of Claim in November 2011 the Veteran reported that Ehler-Danlos Syndrome (EDS) was a group of inherited disorders that affect the connective tissues, primarily the skin, joints, and blood vessel walls.  It was a genetic mutation that disrupted the production of collage, a chief component of connective tissue.  He stated that he had EDS which was responsible for his service-connected bilateral knee disorders and the EDS also affected his hips, iliotibial band rotation, and shoulders, bursitis.  

Private clinical records of Tampa Bay Orthopedics of 2011 and 2012 show that the Veteran was evaluated for complaints of pain and snapping of the right hip.  In December 2011 he had arthroscopic trochanteric bursectomy and iliotibial band release, following which there was an improvement as to his hip pain and snapping.  

On VA spinal examination in March 2012 it was reported that the Veteran lumbar disc degeneration and spondylosis.  He reported that he had first developed low back pain in 2002 but denied having had any injury.  He had been treated on several occasions during service for what he was told was a lumbar strain.  His low back symptoms had initially been intermittent but became constant about 8 years ago.  On physical examination he had limited lumbar motions.  He had localized tenderness or pain but no guarding or muscle spasm.  Strength was 5/5 on flexion of the hips, extension of the knees, and plantar and dorsiflexion of the ankles.  There was no muscle atrophy.  He had normal sensations in the lower extremities.  He had no signs of radiculopathy.  He had no neurologic abnormalities related to the thoracolumbar spine, e.g., bladder problems.  He had intervertebral disc syndrome (IVDS).  He reported using crutches due to his low back, knees, and hip condition.  He reported being a full-time student and that his low back pain affected his concentration, although his grades were average.  

On VA examination of the Veteran's knees in March 2012 the Veteran complained of constant severe bilateral knee pain which was aggravated by walking, weight-bearing, and prolonged sitting.  He did not report having flare-ups which impacted function of his knees.  On physical examination right knee flexion was to 120 degrees and extension was full to 0 degrees without any objective evidence of painful motion.  Left knee flexion was to 130 degrees and extension was full to 0 degrees without any objective evidence of painful motion.  After three repetitions of motion there was no change in the degree of range of motion of either knee.  There was no functional loss or functional impairment of either knee.  He had tenderness or pain on palpation of the joint line or soft tissue of each knee.  Strength was 5/5 on flexion and extension of each knee.  Ligament stability was normal in each knee as to anterior and posterior stability and as to medial and lateral stability.  However, there was evidence or a history of recurrent patellar subluxations or dislocations but in response to the question of severity the answer was "none" as to each knee.  The Veteran reported having been diagnosed with shin splints, bilaterally, in 2000 but not now having any current symptoms.  He had no mensiceal conditions.  He had no residual signs or symptoms of his past bilateral knee operations.  His postoperative scars were not painful or unstable and the total area was less than 39 square centimeters.  He used braces and crutches constantly.  The examiner commented that there was no objective evidence of pain but subjective pain occurred at approximately 105 degrees of flexion of each knee.  The Veteran reported having no locking of the knees but having stiffness on prolonged flexion.  There was no evidence of a subluxing patella, although the patella was somewhat hypermobile.  

On additional VA examination in March 2012 the Veteran reported having severe bilateral hip pain.  After testing range of motion of the hips it was stated that the Veteran had no functional loss or functional impairment of his hips or thighs.  

In April 2012 the examiner stated that the Veteran's bilateral hip conditions and lumbar spine condition were not secondary to or aggravated by his knee conditions.  His initial patellae subluxations and the corrective surgery were not etiologies for the Veteran's subluxing iliotibial band of the hip, trochanteric bursitis of the hip or lumbar disc disease or lumbar spondylosis.  His back condition was not related to events that occurred in military service, having been seen on only one occasion, in September 2001 for low back pain of 2 weeks duration, and there was no history of trauma or chronicity.  The initial Bay Pine VA Medical Center progress note of April 30, 2007, indicated that the Veteran's back pain was of 18 months duration and his smoking was a risk factor for development of lumbar disc disease.  It was stated that the May 2008 VA clinical record offering an opinion was reviewed but there was no rationale included in that statement.  It was further stated that there was no association between the conditions in the accepted literature.  Additionally, the premise was based on the Veteran's arthritis causing the secondary conditions but multiple imaging of the knees, X-rays and MRI had been done, and no arthritis had been noted by radiologists.  Also, the Veteran was not service-connected for arthritis of the knees.  

On VA genitourinary examination in March 2012 the Veteran's claim file and other records were reviewed.  He reported that had generalized intermittent pain in the genital area and it was typically caused by sitting in certain positions for 10 minutes.  It was reported that he did not have voiding dysfunction.  He had a history of urethral or bladder calculi.  He had not had treatment for recurrent stone formation in the urethra or bladder.  He had no signs or symptoms due to cysto- or urethrolithiasis.  He had no history of recurrent symptomatic bladder or urethral infections.  He did not and had never had bladder or urethral fistula, stricture, neurogenic bladder, bladder injury or bladder surgery.  He had no benign or malignant neoplasm.  His genitourinary condition did not impact his ability to work.  He reported having had an episode of hematuria in 2000.  He had not been formally diagnosed with renal calculi because an ultrasound was negative and no stones were analyzed.  Thus, the location of the presumed renal calculi could not be determined.  Further, he did not have any testicular tenderness, although he had a small varicocele.  There was mild tenderness of the right testicle, with a probable spermatocele.  It was stated that the varicocele caused no urinary or vascular conditions.  

On VA examination in March 2012 for the claimed headaches, it was reported that the Veteran had been diagnosed with migraine headaches.  He reported having developed a headache at age 8 but did not have headaches again until age 17.  He reported that he was first seen by a medical provider for headaches in September 2000 and was told to take over-the-counter medications.  He was seen approximately 2 years later and told to continue such medications and at that time he was having headaches once weekly.  He reported that currently he had headaches twice daily with associated phonophobia, photophobia, and heat sensitivity.  On examination the sites, nature, and signs and symptoms associated with the headaches were recorded.  He reported having had headaches during classes at school.  An April 2012 addendum reflects that examiners opinion that the Veteran's headaches were not secondary to events that occurred during military service.  He had not been diagnosed with headaches and did not have symptoms supporting a diagnosis of migraine headaches during military service.  

In February 2013, after reviewing the claims files, including the postservice medical records, the examiner stated that the Veteran's headaches were not related to events that occurred during military service.  The Veteran was not treated for chronic headaches during military service.  He had one visit in 2003 when he related a history of taking Excedrin as needed for headaches.  Post military clinical notes of December 2005 and February 2006 were reviewed and in 2006 he denied having headaches.  Subsequently, the initial April 2007 VA Bay Pines clinical noted indicated that he had had a loss of consciousness and since that episode he had had 2 to 3 headaches per week.  

On VA psychiatric examination in April 2012 the Veteran's claim file and medical records were reviewed, and his childhood history was reported.  During service he had excelled as a services journeyman, primarily in food services.  After service he attempted to work but was limited by his continuing mood and anxiety symptoms.  Currently, he noted varying daily moderate depressive symptoms, i.e., decreased energy, motivation, interests, self-esteem, libido, patience, concentration, and sleep.  He did not complain of suicidal or homicidal ideation.  He had no history of psychotic or panic symptoms or of recent substance abuse.  He cited many worries which limited his sleep, e.g., inability to work, finances, physical limitations, school pressures, and worries about his wife.  He reported having recurring bad dreams and memories, with social anxiety and avoidance.  The examiner stated that the Veteran's condition was best described as his having occupational and social impairment with reduced reliability and productivity.  There was no diagnosis of traumatic brain injury.  

The examiner noted that the Veteran had completed several college classes and was a full-time college student.  He had worked in labor pools, as a restaurant server, and a bill collector for a furniture company.  He last worked in 2007.  He had been married only once, to his current wife of 2 years.  He was estranged from his mother and siblings.  He sustained positive regular direct contacts with his father and stepmother.  He had no close trusted friends and only socialized with his wife and parents.  He had a depressed mood, anxiety, and near continuous panic or depression affecting his ability to function independently, appropriately, and effectively.  He had chronic sleep impairment, and mild memory loss.  He had disturbance of motivation and mood.  He had difficulty establishing and maintaining effective work and social relationships.  He had difficulty in adapting to stressful circumstances, including work or a work-like setting.  He had suicidal ideation and also impaired impulse control, e.g., unprovoked irritability with periods of violence.  He was capable of managing his financial affairs.   

On VA examination in November 2012 for possible traumatic brain injury the Veteran's claim file and medical records were reviewed.  It was reported that he had slipped and fallen in a kitchen during service, in October or November 2000, with a minor concussion but no loss of consciousness.  He developed headaches in October 2000, stating that he had had two bad migraine headaches prior to service.  He reported that shortly after service he had fallen in a bathroom and awoke several days later in a hospital where he received precautionary treatment for a possible seizure.  He reported that he had not been directly impacted by any blasts during service.  On a mental status examination he complained of mild memory loss.  The examiner stated that the Veteran did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a traumatic brain injury, e.g., migraine headaches.  

Neuropsychological testing revealed that while endorsing symptoms of emotional distress, the Veteran's cognitive profile was predominantly one of normal neuropsychological performance and did not support the presence of a traumatic brain injury related cognitive disorder.  While he related a history of combat-related concussion, objective data did not support the presence of any significant residual problems.  His Global Assessment of Functioning (GAF) score was 60.  

In a March 2013 addendum, the November 2012 examiner stated that the Veteran's minor trauma while in Iceland caused only minor chin pain, a small abrasion, and some mild tenderness.  He most likely did not have a concussion from this assault.  

An April 2013 clinical record (contained in Virtual VA) shows that neuropsychological testing in May 2007 did not indicate any specific cognitive deficits, and repeat testing in January 2013 found predominantly normal neuropsychological performance and did not support the presence of traumatic brain injury related cognitive disorder.  

Principles of Service Connection

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date.  38 C.F.R. § 3.303(b).  

Certain conditions, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after the period of service on which the claim is based.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree.  38 C.F.R. § 3.307(c).

A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  

In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology.  To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2000).   Under 38 C.F.R. § 3.303(b) continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition.  38 C.F.R. § 3.310(a) and (b).  This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Wallin v. West, 11 Vet. App. 509, 512 (1998).  

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature."  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  

Competent lay evidence must also be credibile to support a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994).  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson, 581 F.3d at 1316 (Fed.Cir. 2009).  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  

If the preponderance of the evidence is against the claim, it is denied, but if the preponderance supports the claim or is in equal balance, the claim is allowed.  38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102.  

Head Injury Residuals

The history of the Veteran's having had a head injury prior to service, as noted in a medical history questionnaire at service entrance, only noted that he had had stitches after being attacked by a dog.  There is otherwise nothing to suggest that there existed, at service entrance, any chronic residuals of a head injury and, so, the Veteran is presumed to have been in sound condition at service entrance.  Rather, it is contended that he sustained two head injuries during service.  One was when he fell in a kitchen and the other when he was assaulted.  He did not seek treatment for the first injury and, as to the second, the STRs confirm that he was struck in the face during service but those records do not suggest that he sustained any head injury, including any injury to his brain.  

The Veteran had a postservice episode of a loss of consciousness in 2006 and it is suggested that this may have been a seizure due an inservice head injury.  However, testing in 2006 did not confirm the presence of a seizure disorder.  The underlying cause of the 2006 episode was never identified, although there was speculation as to several possible causes, e.g., that is was due to his simply not having slept for a significant period of time or that he fell, striking his head, or was assaulted.  However, other than the Veteran's lay speculation that this event, several years after service, was due to some putative inservice head injury, there is nothing which confirms that the 2006 episode of loss of consciousness (an event which never recurred) is related to an inservice head injury.  Moreover, an extensive evaluation in May 2007 did not reveal any specific cognitive deficits and his history was not typical of a post-concussive syndrome but, rather, was more consistent with emotional difficulties.  It was also felt that the event in 2006, even if there was a possible brain contusion was a more likely etiology of any cognitive impairment than any serve-related events and, more importantly, his presentation was consistent with psychiatric impairment.  As to this, the Veteran has suggested that he has memory loss due to a head injury but it must be observed that memory impairment can also be a symptom of psychiatric disability, such as his service-connected psychiatric disorder.  See 38 C.F.R. § 4.130, General Formula for Rating Mental Disorders ("mild memory loss" being a criterion for a 30 percent rating, and impairment of short and long-term memory being criteria for the current 50 percent rating).  

Also, the November 2012 VA examiner assumed that the Veteran had, in fact, sustained a minor concussion from an inservice fall but after an examination the examiner concluded that the Veteran had no subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a traumatic brain injury.  Even neuropsychological testing did not support the existence of a cognitive disorder related to a traumatic brain injury.  

While the Veteran is competent to attest to observable events and symptoms, lacking medical education, training, and experience he is not competent to attest that memory impairment or other cognitive symptoms, of a type consistent with psychiatric disability, are attributable to trauma.  Thus, the Veteran's lay statements are of little probative value and the Board finds that the medical opinions, based on extensive evaluations and testing, are of far greater probative value and establish that the Veteran does not have any residuals of a head injury.  

Where, as here, persuasive evidence does not establish that the current disability for which service connection is sought actually exists, there can be no valid claim for service connection.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As such, the claim for service connection for residuals of a head injury must be denied because the first criteria for service connection - evidence of a current disability upon which to predicate a grant of service connection - has not been met. 

Migraine Headaches

A Veteran is presumed to be in sound condition upon examination for entrance into active service except for disability found upon such examination.  This presumption of soundness can only be overcome if VA finds there is (1) clear and unmistakable evidence that the claimed disability pre-existed military service; and, (2) there is clear and unmistakable evidence that it was not aggravated during that period of active service.  See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.  

The existence of chronic headaches was not found upon examination for entrance into active service.  The adjunct medical history questionnaire noted that the Veteran had taken aspirin for headaches prior to service.  However, a '[h]istory of preservice existence of conditions recorded at the time of [entrance] examination does not constitute notation of such conditions but will be considered together with all other material evidence in determinations as to inception."   38 C.F.R. § 3.304(b)(1).  In other words, the notation in an entrance medical history questionnaire, standing alone, does not rebut the presumption of soundness.  

There is other evidence of record indicating that the Veteran had headaches prior to his active service.  For example, his service dental records indicate that he had migraines since the age of 12, the frequency of which varied with his stress levels and he was to be given medication for his migraines.  As to the question of whether the history at service entrance, when it is considered together with this other evidence is sufficient to rebut the presumption of soundness, the Board concludes that it does not.  Here, the Veteran's testimony that his headaches began during active service may not be taken lightly.  At the 2012 VA examination he reported that he had had headaches at age 8 but not again until age 17.  The record also shows that he has related other, and varying, histories.  Thus, the record as a whole does not clearly and unmistakably establish that the Veteran had chronic headaches or migraines prior to his active service.  

This matter having been resolved, there remains the question of whether the Veteran now has migraine headaches which were incurred during or are related to his active service.  At the hearing the Veteran indicated that he had not been treated for headaches but, in addition to his dental records, the STRs show that he was seen for what twice were described as migraine headaches.  

However, the only competent medical opinion in this case which addresses the Veteran's headaches is that expressed by a VA examiner.  While initially stating that the Veteran did not have symptoms supporting a diagnosis of headaches during service, and headaches had not been diagnosed during service, in February 2013, after reviewing the claims files, including the postservice medical records, the examiner's opinion was that the Veteran's headaches were not related to events that occurred during military service.  The examiner's revised opinion, based on review of the claims files, noted the inservice treatment for headaches but also noted that postservice clinical notes of December 2005 and February 2006 were reviewed and in 2006 he denied having headaches, and thereafter, in 2007 he reported having had multiple weekly headaches after his 2006 episode of loss of consciousness.  

The Board finds that the medical opinion, based on extensive evaluation and review of the multiple volumes of evidence, is of greater probative value than the varying clinical histories which the Veteran has related over the years.  Thus, since the Veteran's lay evidence is of lesser probative value than the negative VA medical opinion, the Board concludes that service connection for migraine headaches is not warranted.  

Right Arm Bullet Wound Scars

To the extent that the Veteran may allege that his right arm scar is the same as the scarring on his right hand and elbow, these scars were found on the service entrance examination and, so, the presumption of soundness is not applicable.  To warrant service connection on this basis, he bears the burden of proving aggravation of such pre-existing scarring.  However, it is neither alleged nor shown that there was any such inservice aggravation, i.e., an increase in severity of any scar symptoms.  Horn v. Shinseki, 25 Vet. App. 231, 235-40 (2012); Wagner v. Principi, 370 F.3d at 1096.  

The Veteran has testified that he has a scar of the right biceps from a grazing bullet wound received in combat.  38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) provide that in the case of a combat veteran lay or other evidence of service incurrence or aggravation is sufficient proof of the occurrence of an event but this deals with what happened during service and not the questions of either the existence of current disability or nexus to service.  Davidson v. Shinseki, 581 F.3d 1313, 1315 (Fed.Cir. 2009) (finding that 38 U.S.C. § 1154(b) does not require controlling weight be given to testimony as to the cause of a combat veteran's death).  In this connection, the Veteran was not granted service connection for PTSD, although his current disability rating encompasses all psychiatric symptomatology regardless of etiology, and no inservice stressor was ever verified, including alleged combat stressors.  As to this, the evidence does not show that the Veteran ever actually participated in combat.  The statement from a service comrade, while attesting that they met overseas does not suggest that the Veteran was in combat.  Moreover, he was not given any decorations, citations or awards indicative of active participation in combat, as opposed to merely being present in a combat area. 

In his May 2006 VA Form 21-0781 (stressor statement) the Veteran acknowledged that there are no service records of an injury from a bullet wound, and he alleged that scarring from a bullet wound could be dated by tissue samples.  However, he offers no evidence or information that tissues samples can be used to date an old injury and he is not competent to attest to this.  Also, the Board does not know of any other means of doing so.  In other words, this allegation is not shown to be anything more than sheer lay speculation.  

In addition to never seeking inservice treatment for a putative right arm scar, the Veteran has never sought postservice treatment and there is also no evidence that any such scarring is symptomatic.  Moreover, there is no clinical evidence that such a right biceps scar exists.  Where, as here, persuasive evidence does not establish that the current disability for which service connection is sought actually exists, there can be no valid claim for service connection.  Gilpin, Id., and Brammer, Id.  Accordingly, service connection for a right arm bullet wound scar is not warranted.  

Low Back Disability

The Veteran was seen during service in September 2001 for low back pain and while it was noted that he sometimes picked up heavy boxes, he indicated that the pain had begun without a specific injury.  There is no confirmation of his testimony that he was given extensive inservice treatment.  A 2005 VA examiner rendered an opinion, after examination, of low back pain due to a strain from lifting heavy object during service.  The only source of information from which this opinion could have been obtained was from the history which the Veteran related at the time of that examination.  The evidence does not show that the 2005 VA examiner reviewed the STRs.  The Veteran also had a postservice back injury in September 2005, for which he at least attempted to obtain worker's compensation.  Also, there no any indication that the 2008 VA physician (opining that chronic back pain was due to an abnormality gait from the service-connected knee disabilities) reviewed the voluminous records available.  In fact, the 2008 VA physician noted that the report was written at the Veteran's request.  While this alone does not diminish the probative value of that opinion, the lack of an adequate foundation for the opinion, e.g., by reviewing the claims files or extensive medical records, does.  Significantly, the March 2012 VA examiner stated in April 2012 that the 2008 opinion offered no stated rationale.  The 2012 VA examiner reported that there was no association between the conditions, i.e., the low back and the service-connected knee disabilities, in accepted medical literature and, further, the premise of the 2008 statement was that the Veteran had arthritis in his knees, but imaging studies had not confirmed the presence of knee arthritis.  The 2012 examiner clearly reviewed the claims files, noting that the Veteran was seen during service for low back pain of only a few weeks duration without a history of trauma, and stated that there was no evidence of chronicity.  

The Board finds that the 2012 VA medical opinion, based on extensive evaluation and review of the multiple volumes of evidence, is of greater probative value than the Veteran's lay statements and testimony of continuous low back pain after service and the report of the 2005 VA examination and the May 2008 VA physician's statement.  

Accordingly, service connection for a low back disorder is not warranted.  

General Rating Principles

Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity.  Separate diagnostic codes (DCs) identify the various disabilities.  38 U.S.C.A. § 1155.  Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present.  38 C.F.R. §§ 4.1, 4.2.  A higher rating is assigned if it more nearly approximates such rating.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. §§ 4.3, 4.7, 4.21. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v.West, 12 Vet. App. 119 (1999).  

An unlisted condition may be rated under a closely related disease or injury by the use of a "built-up" DC under 38 C.F.R. § 4.27, with consideration given to relevant medical history, current diagnosis, symptomatology, functions affected, and anatomical localization.  38 C.F.R. § 4.20.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); Butts v. Brown, 5 Vet. App. 532, 538 (1993); Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992); and Archer v. Principi, 3 Vet. App. 433 (1992).  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided.  38 C.F.R. § 4.14.  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several DCs, however, the critical element is that none of the symptoms for any one of the conditions is duplicative or overlapping with symptoms of the another condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Initial 10 Percent Rating for Left Knee Dislocations, Status Post Osteotomy

Disability of the musculoskeletal system is primarily the inability to perform the normal working movements with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  The factors of joint disability reside in reductions of normal excursion in different planes.  Other factors are weakened movement, excess fatigability, incoordination, painful motion, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45. 

When evaluating joint disabilities rated on the basis of limited of motion, a higher rating may be warranted when there is 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; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Moreover, although pain may be a cause or manifestation of functional loss, limited motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  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.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 

In sum, Mitchell held that pain on motion is not, itself, "functional loss," but "may result in functional loss ... only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance'."  Id. at 5 (quoting 38 C.F.R. § 4.40). 

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Painful motion with joint or periarticular pathology is productive of disability, and actually painful, unstable, or malaligned joints, due to healed injury, warrant at least the minimum compensable rating.  38 C.F.R. § 4.59.

The Veteran is not service-connected for arthritis of either knee and, as noted, he did not appeal the April 2013 rating decision which denied osteoarthritis of each knee.  Nevertheless, the Board will address the propriety of rating(s) of the left knee based on limitation of motion.  

DC 5003 provides three rating methods for rating degenerative arthritis.  First, when there is X-ray evidence rate based on limited motion under the appropriate DCs for the specific joint or joints involved.  Second, when motion is not limited or limited only to a noncompensable degree, a minimum, rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined not added.  Limited motion must be confirmed by swelling, muscle spasm or satisfactory evidence of painful motion.  Third, when there is no limited motion but X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent is warranted but if there are occasional incapacitating exacerbations 20 percent is warranted.  

With respect to the first method, the appropriate DCs to rate limited motion of a knee are DC 5260 for limited flexion and DC 5261 for limited extension.  

Separate ratings for limitation of motion in flexion and in extension of a knee may be assigned.  See VAOGPREC 9-2004 (September 17, 2004).  Also, a compensable degree of limited motion under DCs 5260 and 5261 need not be shown; rather, a compensable rating may be granted, in addition to a rating for instability under DC 5257, if there is X-ray evidence of arthritis and also painful motion under 38 C.F.R. § 4.59.  

38 C.F.R. § 4.71a, DC 5260 (limitation of flexion) provides that a 10 percent evaluation is warranted for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; and 30 percent for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5261 (limitation of extension0 provides for a 10 percent evaluation when extension is limited to 10 degrees; 20 percent for extension limited to 15 degrees; and 30 percent for extension limited to 20 degrees.  Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II.

38 C.F.R. § 4.71a, DC 5257 provides for a 10 percent disability rating for slight recurrent subluxation or lateral instability; 20 percent for moderate recurrent subluxation or lateral instability; and 30 percent when severe.  38 C.F.R. § 4.71a, DC 5258 provides that a 20 percent evaluation, the highest and only rating available where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint.

Symptomatic residuals of removal of a semilunar cartilage warrant a maximum 10 percent rating.  38 C.F.R. § 4.71a, DC 5259.  Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion.  VAOGCPREC 9-98.  38 C.F.R. § 4.71a, DC 5256 provides that favorable ankylosis of a knee, at an angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a minimum rating of 30 percent.  38 C.F.R. § 4.71a, DC 5262 provides that malunion of the tibia or fibula with slight knee disability warrants a 10 percent rating; with moderate knee disability 20 percent is assigned; and with marked knee disability a maximum 30 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5263 provides a 10 percent rating for genu recurvatum with weakness and insecurity in weight-bearing which is objectively demonstrated.  

It is at least inferentially contended that the private physician statement in September 2010 should be given greater weight that the opinion of recent VA examiners.  However, the broad application of the treating physician rule (giving greater weight to opinions of treating physicians) has been explicitly rejected.  Van Slack v. Brown, 5 Vet. App. 499, 502 (1993) (citing Harder v. Brown, 5 Vet. App. 183, 188 (1993) (a treating physician's opinion cannot be given lesser weight in the absence of no contrary evidence)); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) and White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001).  

While the Board is not free to ignore the opinion of a treating physician, the Board is certainly free to discount the credibility of that physician's statement.  Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992) (citing Willis v. Derwinski, 1 Vet. App. 66 (1991).  The private physician stated in September 2010 that the Veteran had severe lateral patellar subluxation.  While the Veteran has complained of patellar subluxation, for which he had inservice surgery, repeated VA examinations have found no actual subluxation of the left patella but only that the left patella is somewhat hypermobile.  Moreover, the private physician's statement does not reflect the findings of any actual physical examination but merely presents a conclusion.  Thus, greater weight is given to the VA examinations which have found not actual left patella subluxation.  

Here, the Veteran has never had any actual subluxation or instability of the left knee joint itself, as opposed to hypermobility of the left patella.  To the extent that he has reported having left knee instability, repeated testing of ligaments of the left knee has never yielded findings indicative of subluxation or instability of the left knee joint.  The 2011 VA examiner stated only that the Veteran had a subjective sensation of patella instability, but that there was no X-ray evidence of patellar subluxation.  Moreover, although an October 2007 VAOPT record indicates that he had a poorly developed quadriceps, repeated testing of strength of that lower extremity both prior thereto and after have found no significant decrease in strength or any atrophy of the left leg.  

It is asserted that the Veteran should be assigned a separate compensable rating for limited extension.  As noted, separate ratings may be assigned when appropriate.  Here, there is one notation of degenerative changes in the knee but the recent VA examiner in 2011 stated that no arthritis had been radiologically documented.  While an April 2010 VAOPT record suggested the presence of early DJD due to joint hypermobility syndrome, it did not indicate that this was based upon radiological evidence.  Also, it is again noted that actual instability of the knee joint itself is not documented.  Moreover, the hypermobility joint syndrome is a reference to the Veteran's Ehler-Danlos syndrome and, to the extent that an October 2009 VAOPT indicated that there was arthritis associated with that syndrome, any such impairment would not be considered for rating purposes.  

Moreover, repeated VA rating examinations have never found limitation of extension of the left knee.  A review of the tests of flexion shows that his range of motion has been from 115 degrees to 140 degrees without pain.  In fact, the VA examinations in 2011 and 2012 found that there was no objective evidence that the Veteran had pain on either flexion or extension.  The 2012 examiner indicated that there was subjective pain at 105 degrees.  However, ratings based on limited motion require objective evidence of limited motion due to pain.  Accordingly, separate compensable ratings for limitation of flexion or limitation of extension are not warranted.  

The Board is aware that the Veteran has progressed from using a cane to using crutches, and now uses Canadian crutches, but the evidence indicates that this is due to the progression of his nonservice-connected Ehler-Danlos syndrome (although it has been variously described or classified) and has affected multiple joints, including his hips and low back.  This is supported by the evidence which indicates that his left knee disability has been relatively stable since his discharge from active service with no recurrences of dislocations or subluxation of the left patella, no instability of the left knee join proper, and no significant decreased muscle strength or atrophy of the left leg, nor any limited extension and no significant limitation of flexion.  

Accordingly, separate ratings for the left knee based on limited motion are not warranted and a rating in excess of the initial 10 percent for postoperative residuals of recurrent dislocations of the left knee with osteotomy is not warranted at any time during the appeal and, so, there is no basis for staged rating, pursuant to Fenderson.  

Left Varicocele

The service-connected left varicocele has been assigned an initial noncompensable rating, analogously, under 38 C.F.R. § 4.115b, DC 7525 as chronic epididymo-orchitis which, in turn, is rated as a urinary tract infection.  It is alleged that, alternatively, consideration should be given to a rating on the basis of other genitourinary impairment, e.g., urinary frequency or leakage, or obstructed voiding.  The Board will give such consideration.  For example, under 38 C.F.R. § 4.115b, DC 7529 benign neoplasms of the genitourinary system are rated as voiding dysfunction or renal dysfunction, whichever is predominant.

Also, the Veteran's attorney has requested evaluation of the varicocele under 38 C.F.R. § 4.104, DC 7120 which provides criteria for evaluating varicose veins.  Varicose veins most commonly affect the lower extremities and the criteria at DC 7102 reflect this.  For example, a 10 percent rating under DC 7120 requires intermittent edema of an extremity or aching and fatigue in a leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery.  Moreover, the DCs within 38 C.F.R. § 4.104 are for evaluation of disabilities of the cardiovascular system.  As to this, the Board recognizes that a varicocele is a varicose vein within the scrotum.  A varicocele is a varicose enlargement of the veins of the spermatic cord producing a soft compressible tumor mass in the scrotum.  Smith v. Brown, 9 Vet. App. 363, 364 (1996).  Indeed, the Veteran testified that his varicocele felt like a sac of worms.  

Here, the Veteran meets one criterion under DC 7102, i.e., he has a varicose vein.  However, DC 7102 contains criteria for impairment of one or more lower extremities and addresses not only disability affecting completely different bodily systems, i.e., the cardiovascular system, but also a different anatomical location, i.e., the lower extremities.  Thus, the mere presence of a varicose vein is a consideration, but this not determinative of which DC should be used for rating purposes.  While the Veteran has testified that he has some relief of swelling when he elevates his legs, the evidence does not show that the varicocele causes swelling of the legs, as opposed to swelling of the varicocele, and it also appears that the elevation of his legs is a means of relieving symptoms related to his separately service-connected and rated disabilities of the knees.  His actually complaints concerning his varicocele are unrelated to his musculoskeletal system and his cardiovascular system.  Thus, the Board finds that the disability in best evaluated under 38 C.F.R. §§ 4.115a and 4.115b which set forth the criteria for evaluation of disabilities of the genitourinary system.  

38 C.F.R. § 4.115a provides that diseases of the genitourinary system generally result in disability related to renal or voiding dysfunctions, infections, or a combination of these, and sets for a schedule providing descriptions of various levels of disability in each of these symptom areas.  Where DCs refer to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes.  Since the areas of dysfunction described do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis.  

In rating voiding dysfunction, rate the particular condition as urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a.  

For continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence, a 20 percent rating is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed less than 2 times per day.  Forty (40) is assigned for urinary leakage requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; and sixty (60) percent for urinary leakage requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day.  38 C.F.R. § 4.115a. 

For urinary frequency a 10 percent rating is assigned for urinary frequency with daytime voiding interval between two and three hours, or; awakening to void two times per night.  Twenty (20) is assigned for urinary frequency with daytime voiding interval between one and two hours, or; awakening to void three to four times per night.  Forty (40) percent is assigned for urinary frequency with daytime voiding interval less than one hour, or; awakening to void five or more times per night. 

Obstructive urinary symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a noncompensable rating.  Ten (10) percent is assigned for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post void residuals greater than 150 cc.; (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months.  Thirty (3) percent is assigned for urinary retention requiring intermittent or continuous catheterization.  

Urinary tract infections with poor renal function are to be rated as renal dysfunction.  Otherwise, urinary tract infections with long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management warrant a 10 percent rating.  Recurrent symptomatic urinary infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management warrants a 30 percent rating.  


A noncompensable rating is assigned for renal dysfunction with albumin and casts with a history of acute nephritis, or hypertension which is noncompensable under DC 7101.  A 30 percent rating requires constant albumin or recurring hyaline and granular casts or red blood cells; or transient or slight edema of hypertension which is at least 10 percent disabling under DC 7101.  Under 38 C.F.R. § 4.104, DC 7101 a 10 percent rating is warranted for hypertension with diastolic pressure predominantly7 100 or more, or systolic pressure predominantly 160 or more, or; a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  

Here, there is no competent evidence that the Veteran has any renal dysfunction due to his left varicocele and, so, evaluation in the basis of any renal impairment.  The Veteran testified that the sensation of his varicocele disturbed his concentration and, so, caused interference with his bowel movements.  However, he has not provided any further information in this regard and has not alleged that he is unable to have bowel movements or the manner of any alleged interference.  
Moreover, consideration for rating purposes may not be given to his alternating constipation and diarrhea inasmuch as these are due to his nonservice-connected irritable bowel syndrome (IBS).  In fact, at the January 2007 VA examination his peroneal reflexes were normal.  He further testified that he had moderate difficulty urinating, swelling every other day, as well as numbness at the site which would change to aching.  However, he has never had to wear absorbent material for urinary leakage, daytime voiding at intervals of between 2 and 3 hours, or awakening at night to void 2 or more times.  Also, there is no evidence of stricture disease requiring dilatation and there is no clinical confirmation of he purported moderate urinary difficulty such as marked obstructive symptom, including hesitancy, slow or weak urinary stream, decreased force of urinary stream or any actual recurrent urinary tract infections due to obstruction.  Likewise, he has never been hospitalized or required intermittent intensive management or long-term drug therapy.  

Significantly, the Veteran testified that his primary problem stemming from his varicocele is diminished self-esteem and confidence with respect to intimacy with his fiancée.  Here again, he did not testify nor is there evidence that his varicocele actually impairs his ability to have intimate relations, nor is there otherwise evidence of actual loss or loss of use of a creative organ.  See note to 38 C.F.R. § 4.115a and also 38 C.F.R. § 3.350.  As to this, there is no evidence that he is unable to produce sperm.  See 38 C.F.R. § 3.350(a)(1)(i)(c).  In fact, at the January 2007 VA examination he reported that he had no other problems related to the varicocele and specifically denied any urinary tract infections, urinary frequency and urgency as well as incontinence.  At that examination he mentioned having passed a kidney stone during service but the evidence is otherwise negative for any renal dysfunction.  

The Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected disability and notes that the Veteran lay statements are competent to describe certain associated symptoms.  These have been considered credible and competent and have been contemplated by the noncompensable rating assigned.  However, the Board has placed the greatest probative weight to the clinical findings by medical examiners as they possess greater training and expertise than the Veteran in accurately measuring and assessing medical findings needed for rating purposes.  

The Board concludes there is no basis for staged rating, pursuant to Fenderson, and that no higher rating may be assigned during the appeal period because the Veteran's symptoms have been stable throughout the appeal.  Therefore, assigning staged ratings for the disability is not warranted.  Accordingly a compensable rating for a left varicocele is not warranted at any time during this appeal.  


Extraschedular Consideration

An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  This requires a three-set inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  First, is whether the evidence presents such an exceptional disability picture that the schedular evaluations are inadequate, necessitating a comparison between the level of severity and symptoms with the rating criteria, and if the criteria reasonably describe the symptoms and level of severity, the assigned schedular rating is adequate and no referral is required.  Second, if the schedular rating does not contemplate the symptoms and level of severity and is inadequate, it must be determined if there exists and exceptional disability picture which exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, if the first two inquiries are met, then the case is referred to the appropriate VA official for consideration.  Id.  However, an extraschedular rating is applicable only as to a single, i.e., individual, service-connected disorder and not the collective or cumulative impact of multiple service-connected disorders.  See Johnson v. Shinseki, slip op., No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc).  So, the Board may not consider the combined impact of the Veteran's service-connected left knee disability and left varicocele, nor of all the Veteran's service-connected disabilities, one upon another, in determining whether an extraschedular rating is warranted for a single service-connected disorder. 

Likewise, caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b) with the criteria for a total disability rating based on individual unemployability (TDIU) in 38 C.F.R. § 4.16(b) (2010).  The Court has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  While the former requires marked interference with employment, the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extra-schedular consideration under § 3.321 may be warranted for disability that present a loss of earning capacity that is less severe than total unemployability).

The rating criteria for the left knee disorder contemplate the impairment from the symptoms of which the Veteran complains, i.e., interference with function and this is encompassed in the award of the 10 percent rating.  The governing rating criteria encompass a wide range of signs and symptoms and the service-connected disorder require application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires application of 38 C.F.R. §§ 4.40 and 4.45, as reported above.  

Similarly, the rating criteria for evaluating the service-connected left varicocele are comprehensive in nature and consider many potential forms of genitourinary impairment.  However, as stated, the evidence is not persuasive that he has any genitourinary dysfunction.  

Comparing the Veteran's current disability levels and symptoms to the Rating Schedule, the degree of disability from each service-connected disorder addressed herein is contemplated by the Rating Schedule and the assigned schedular rating is adequate for each.  There are no additional symptoms of disability that are not addressed by the rating schedule or considered in this decision.  Moreover, higher possible schedular ratings are potentially assignable.  The rating criteria reasonably describe the Veteran's disability levels and symptoms of the service-connected left knee disability and the left varicocele.  Thus, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  So, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Thun, Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

TDIU

A TDIU may be assigned where, without regard to advancing age, the schedular rating is less than total, and the veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012).  

The Veteran is service-connected for a mood disorder (also claimed as post-traumatic stress disorder (PTSD) and bipolar disorder), rated 50 percent; recurrent dislocation of the left knee, postoperative osteotomy, rated 10 percent; recurrent dislocation of the right knee, postoperative osteotomy, rated 10 percent; tinnitus, rated 10 percent; and noncompensable evaluations are assigned for a left varicocele, a postoperative left knee scar, and a postoperative right knee scar.  There is a combined disability rating of 70 percent.  The Veteran meets the criteria of 38 C.F.R. § 4.16(a).  

If a Veteran meets the percentage standards of 38 C.F.R. § 4.16(a), there is no reason for VA to consider the extraschedular considerations under in 38 C.F.R. § 4.16(b).  Geib, Id.  Also, the three-step analysis set forth in Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) pertains to the extraschedular provisions of 38 C.F.R. § 3.321(b)(1) for increased rating claims, and is not relevant to a TDIU claim.  See Thun, 22 Vet. App. at 117; and Geib, Id.  

The Board notes, initially, that for a period of time beginning in mid to late 2005 the Veteran was not working but that this was due to a postservice injury, which was apparently work-related.  A review of the claims file shows that his service-connected right knee disability is essentially of the same nature and productive of the same level of functional disability as the service-connected left knee disorder, the severity of the latter having been discussed above.  He has essentially no genitourinary dysfunction due to the left varicocele and his tinnitus, as in all cases of that disorder, is productive of only some minor impairment.  His postoperative scars of each knee are asymptomatic and not productive of any impairment.  

As to the impact of the Veteran's service-connected psychiatric disability, his GAF scores have ranged from 60 to 80.  A score of 60 represents moderate symptom or moderate difficulty in social, occupational, or school functioning, while a score of 80 represents the presence of symptoms which are at most transient and expectable reactions to psychosocial stressor, with no more than slight impairment in social, occupational, or school functioning.  The Veteran's work experience has been in areas related to culinary matters, e.g., a restaurant manager.  He has been attending a community or junior college for some years.  At the time of the October 2005 VA psychiatric examination he was found to be functioning at a relatively high level.  

The July 2010 private vocational rehabilitation evaluator concluded that the Veteran was unable to secure or follow gainful employment due to service-connected disability.  However, that evaluator never made it clear that the evaluator was aware which disabilities were service-connected connected.  Specifically, the evaluator noted that the Veteran had pain of the knees, shoulder, right hip, and low back and also had irritable bowel problems.  However, other than the knees, the Veteran is not service-connected for any of these disabilities and, so, their impact may not be considered.  

The private vocational rehabilitation evaluator's noted that the Veteran was attending community college, and majoring in biochemical engineering (which is not a simple subject matter) and maintained a 3.2 grade point average, as well as that intellectually he should be able to succeed at college studies.  The evaluator stated that the Veteran's current level of academic functioning was between the 7th and 8th grade levels and it was doubted that he would obtain a 4 year degree.  Nevertheless, a VA psychiatric examiner in 2012 noted that the Veteran continued to be a full-time college student.  Consequently, given his past managerial work experience and extensive education, it is clear that the Veteran is quite capable of academic functioning far beyond the 7th or 8th grade levels.  

At the hearing the attorney argued that the Veteran was unable to engage in a full range of sedentary work because he was not able to sit in a working position due to his knees and back.  Again, the Veteran is not service-connected for low back disability.  While the Veteran testified as to side-effects of medication for service-connected disability (ies), he also stated that he took medication for nonservice-connected irritable bowel syndrome (IBS), manifested by alternating constipation and diarrhea, which caused heartburn.  The symptoms of IBS and effects of medication may not be considered for a TDIU rating, any more than the Veteran's well documented disability of the hips and shoulders, even if due to a nonservice-connected genetic disease or hereditary trait.  

The Veteran has insisted that he has significant cognitive impairment due either to his service-connected psychiatric disability or nonservice-connected traumatic brain injury residuals.  However, while he has not established cognitive dysfunction from a brain injury, even his service-connected psychiatric disability is not shown to cause significant cognitive dysfunction.  Indeed, if it did it is highly unlikely that he would have been able to continue his education as far as he has.  The ALJ, in not awarding SSA disability benefits, found that the impairment of the knees, and the nonservice-connected migraine headaches, right shoulder, and right hip disorders was not severe and imposed no significant work-related limitations and while accepting that he had no transferrable skills from past work, observed that another vocational expert found that there was employment in keeping with the Veteran's functional capabilities.  The ALJ decision considered many factors and was well reasoned.  

Here, the evidence does not establish that in light of the Veteran's past work experience, his extensive education which he had doggedly pursued over the years, and remaining functional capacity he is incapable of obtaining or retaining substantially gainful employment.  Accordingly, a TDIU rating is not warranted.  

Pension

Nonservice-connected disability pension payments may be made to a veteran of a war who has the requisite service and who is permanently and totally disabled.  38 U.S.C.A. § 1521(a).  A veteran meets such service requirements if such veteran served in the active military, naval, or air service for ninety days or more during a period of war.  38 U.S.C.A. § 1521(j).  In this case, the Veteran's active duty service from July 2000 to July 2004 meets such service requirements.  See 38 C.F.R. §§ 3.2(i), 3.6(a). 

A person is considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the person. 38 U.S.C.A. § 1502(a). 

Total disability exists when there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation; permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.  38 C.F.R. § 4.15; see 38 U.S.C.A. § 1502(a)(4).  Thus, § 4.15 establishes an "objective standard" of average impairment in earning capacity, so that a veteran may qualify for VA pension if his or her disability is sufficiently disabling to be permanently and totally disabling for the average person.  Talley v. Derwinski, 2 Vet. App. 282, 287-288 (1992).  Also, VA regulations provide for a "subjective standard" for nonservice-connected pension; when a veteran whose disability does not meet the objective criteria but is so incapacitated as to precluded a substantially gainful occupation.  Id. at 288. 

Thus, for the purpose of pension, all veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent are rated as permanently and totally disabled.  The claimant must be unable to secure or follow a substantially gainful occupation as a result of a single disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 4.16(a), 4.17. 

Prior employment or unemployment status is immaterial if the veteran's disabilities render him or her unemployable.  Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration is not considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability.  38 C.F.R. § 4.17.  

In this case, although the Veteran was born in 1982 and is therefore of relatively young age, he has extensive functional impairment beyond that resulting only from service-connected disabilities.  In particularly, he has significant functional impairment of the shoulders and hips due to Ehler-Danlos syndrome.  He also has significant disability from IBS and nonservice-connected low back disability.  

The Board is of the opinion that, with the favorable resolution of doubt, the combined and cumulative effect of the Veteran's service-connected and nonservice-connected disabilities is such as to preclude obtaining or retaining substantially gainful employment.  Thus, he meets the criteria for basic eligibility for pension purpose.  However, it must be noted that any award of monetary benefits for pension purposes is subject to all laws and regulations governing the awards of monetary benefits, including those based on limitation of income.  

ORDER

Service connection for residuals of a head injury, for migraine headaches, for a right arm scar as a residual of a bullet wound, and for a low back disorder is denied.  

An initial rating in excess of 10 percent for dislocations, left knee, resolved status post osteotomy is denied.  

An initial compensable rating for a left varicocele is denied. 

Entitlement to a TDIU rating is denied.  

Entitlement to basic eligibility to a permanent and total disability rating for nonservice-connected pension purposes is granted, subject to applicable law and regulations governing the award of monetary benefits.  


____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs