Citation Nr: 1336715 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 08-06 881A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a higher initial evaluation for migraine headaches, rated as 10 percent disabling from August 27, 2006, to November 11, 2008, as 30 percent disabling from November 11, 2008, to May 31, 2012, and as 50 percent disabling from May 31, 2012. 2. Entitlement to a higher initial evaluation for a left knee disability, rated as 10 percent disabling from August 27, 2006, to March 30, 2009, and as 20 percent disabling from March 30, 2009. 3. Entitlement to a separate compensable disability evaluation for a cognitive disorder. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from August 2003 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March and August 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board notes that the Veteran was scheduled for a hearing before a Veterans Law Judge sitting at the RO, to be held in July 2011, but did not appear for the hearing. In November 2011, the RO received from the Veteran a statement wherein the Veteran indicated that wished to withdraw his hearing request, stating that he did not request a hearing in connection with his appeal. Accordingly, any request for a hearing before a member of the Board is considered withdrawn. 38 C.F.R. § 20.704(d), (e) (2013). The instant matters were previously before the Board in April 2012, at which time they were remanded for further development. With respect to the increased rating matters, the issues before the Board at that time were entitlement to initial evaluations in excess of 10 percent for migraine headaches and for a left knee disability. By way of a November 2012 rating decision issued on remand, the Appeals Management Center (AMC) increased the Veteran's left knee rating to 20 percent, effective from March 30, 2009, and his headache rating to 30 percent, effective from November 11, 2008, and to 50 percent, effective from May 31, 2012. Because less than the maximum available benefit for schedular ratings were awarded for the Veteran's left knee and headache disabilities and/or because the increases were not awarded for the entire claims period, the claims remain properly before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Also remanded by the Board in April 2012 were the issues of entitlement to service connection for residuals of traumatic brain injury (TBI), other than a cognitive disorder and migraine headaches, and to service connection for sinusitis. In its November 2012 rating decision, the AMC also granted service connection for chronic sinusitis, evaluated as 10 percent disabling from August 27, 2006, and as 30 percent disabling from May 31, 2012, and for a mild TBI, evaluated as noncompensably disabling from August 27, 2006, and as 10 percent disabling from November 11, 2008. To date, it does not appear that the Veteran has disagreed with any aspect of AMC's decision awarding service connection for sinusitis and a TBI, to include the disability ratings and effective dates assigned. Thus, the matters are not before the Board. The Board notes that in Rice v. Shinseki, the Court held that "a request for [a total rating based upon individual unemployability due to service connected disability (TDIU)], whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." 22 Vet. App. 447, 453 (2009). But see In re Leventhal, 9 Vet. App. 386, 389 (1996) (holding that TDIU is separate claim where based upon multiple service-connected disabilities). In the instant case, the Veteran specifically sought TDIU by way of a March 2008 application for increased compensation based on unemployability (VA Form 21-8940). He indicated that his posttraumatic stress disorder (PTSD), cognitive impairments, and "headaches, etc." prevented him from working. TDIU was denied by the RO in an August 2008 rating decision. The Veteran disagreed with that denial and a statement of the case (SOC) was issued in June 2009. That same month the Veteran filed what was entitled a "substantive appeal for unemployability." Despite the Veteran labeling his filing as a substantive appeal, in the body of that document, the Veteran specifically stated that he "wishes to cease action on entitlement to individual unemployability since he believes other issues before the [B]oard will give him a 100 [percent] disability rating along with his current [80] percent." Accordingly, given the fact that TDIU was explicitly withdrawn and the Veteran alleged multiple disabilities contributing to his disability and was expressly denied and the Veteran indicated his desire to abandon, rather than pursue, any appeal of that issue, the Board will not address entitlement to TDIU as part of the increased rating matters decided herein, as it is clear that the Veteran does not desire to pursue entitlement to such a rating. In this regard, the Board acknowledges that in February 2008, the Veteran alleged that his headaches caused him to not work. The Veteran's February 2009 filing, however, was submitted after that date and, as such, this is not a case in which the Veteran's withdrawal of an issue from consideration was not a knowing withdrawal as evidenced by a continuous intent to seek benefits on a specific basis. FINDINGS OF FACT 1. Prior to May 31, 2013, the Veteran's migraine headaches were accompanied by pain, light and sound sensitivity, nausea, vomiting, dizziness, vision changes, and difficulty with speech and thought processes more nearly approximating disability tantamount to characteristic prostrating attacks occurring on an average once a month over several months. 2. The Veteran's migraine headaches are manifested by symptomatology contemplated by the rating schedule. 3. Prior to March 30, 2009, the Veteran's left knee disability was manifested by painful motion tantamount to flexion no worse than 60 degrees or extension no worse than 5 degrees; objective evidence of instability, subluxation, or arthritis has not been shown. 4. Since March 30, 2009, the Veteran's left knee disability has been manifested by a meniscus tear requiring use of a brace and painful motion tantamount to flexion no worse than 60 degrees or extension no worse than 5 degrees; objective evidence of instability, subluxation, or arthritis has not been shown. 5. The evidence fails to establish that the Veteran has a TBI-related cognitive disorder; the Veteran's memory loss is compensated for by his 70 percent evaluation for his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for headaches were met from August 27, 2006, to March 31, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2013). 2. The criteria for an initial rating greater than 50 percent for migraine headaches were not met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.124a, Diagnostic Code (DC) 8100 (2013). 3. The criteria for initial evaluations in excess of 10 percent from August 27, 2006, to March 30, 2009, or in excess of 20 percent from March 30, 2009, for a left knee disability were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5024, 5258, 5260, 5261 (2010); VAOPGCPREC 23-97 (July 1, 1997). 4. Entitlement to separate disability ratings for PTSD and a cognitive disorder are not warranted. 38 C.F.R. §§ 4.14, 4.126(c) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the issues currently before the Board stem from disagreements with downstream elements, and as such, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled with respect to that claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his service treatment records; VA outpatient treatment records; VA examination reports; private medical records; and numerous statements in support of his claims. The Veteran has not indicated that there are outstanding records that VA should have obtained, and the Board is aware of none. Further, the Veteran specifically indicated that he did not desire a hearing in connection with his claim. The Board also finds that the medical evidence of record is sufficient for the Board to rely upon in evaluating the merits of the Veteran's claims. The Veteran has been afforded several VA examinations in connection with the issues currently before the Board, the reports of which detail the Veteran's subjective complaints regarding his disabilities and indicate that all relevant testing, to include range-of-motion, joint stability testing, and neuropsychological testing was conducted. The examination reports and treatment records also contain evidence regarding the functional impact of the Veteran's disabilities and discuss the variances in certain findings. The Board finds that all prior remand directives were carried out in this regard and is satisfied that the examination reports, along with the VA treatment records and the Veteran's lay assertions, contain sufficient evidence by which to evaluate the Veteran's service-connected disabilities in the context of the rating criteria and during the relevant time periods. Accordingly, the Board has properly assisted the Veteran by affording him adequate VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Cox v. Nicholson, 20 Vet. App. 563 (2007). II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2013). A veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. In the instant case, the Veteran's claims for higher evaluations for his service-connected migraine headaches and left knee disability are original claim that were placed in appellate status by a notice of disagreement expressing disagreement with an initial rating award. As such, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. Headaches As noted in the introduction, the Veteran's service-connected migraine headaches are evaluated as 10 percent disabling from August 27, 2006, to November 11, 2008, as 30 percent disabling from November 11, 2008, to May 31, 2012, and as 50 percent disabling from May 31, 2012, which evaluations have been assigned under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Under DC 8100, a noncompensable rating is assigned for migraines with less frequent attacks; a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2013). Evidence relevant to the issue of the appropriate rating for the Veteran's service-connected migraine headaches includes the report of a March 2006 magnetic resonance imaging (MRI) scan of the brain, which showed a mild cerebellar ectopia, but was otherwise unremarkable. In a November 2006 filing, the Veteran asserted experiencing continual headaches since August 2005 and indicated that he cannot function without the use of medication for extreme pain. The Board notes that this statement is not limited to pain associated with headaches. During a January 2007 VA examination, the Veteran reported recurrent headaches since service. He indicated headaches accompanied by blurred vision and dizziness daily. In a May 2007 filing, the Veteran reported headaches accompanied by light and sound sensitivity, nausea, and a feeling of complete exhaustion. He stated that he suffered from migraines "on a constant basis." During a May 2007 VA PTSD examination, the Veteran complained of "stuttering," which the examiner determined was in fact brief periods of difficulty finding words or expressing ideas when experiencing a severe headache. During a July 2007 VA examination, afforded in connection with a claim of service connection for sinusitis, the Veteran reported headaches accompanying sinus episodes. The frequency of headaches was noted to be several times per year, but less than monthly. In a September 2007 statement, the Veteran again alleged suffering from continual headaches, which would start on the left side of his head and progress to the right and were accompanied by light and sound sensitivity, nausea, dizziness, and blurred vision. A March 2008 treatment record notes chronic, recurrent migraines. The clinician described the type of headache from which the Veteran suffered as being often associated with photophobia or phonophobia. In an April 2008 statement, the Veteran indicated having two to three migraine headaches a week, describing them as completely prostrating and productive of nausea, loss of appetite, light and noise sensitivity. He alleged that his headaches were productive of severe economic inadaptability and contributed to his unemployability. A TBI consultation was conducted on November 11, 2008, the report of which records symptoms of dizziness, very severe headaches, nausea, vision problems, light and sound sensitivity, and fatigue. The Veteran alleged that his headaches caused him to not work. A February 2009 treatment entry noted three to four headaches a week. The Veteran was afforded a VA examination on May 31, 2012. Regarding the severity of his headaches, the Veteran reported that initially they were not debilitating but that he now had days where he was completely non-functional due to his migraines. The Veteran's headaches symptoms were noted to include pulsating or throbbing head pain, worse with physical activity, nausea, vomiting, sensitivity to light, and changes in vision. The Veteran also indicated that his tinnitus triggered his headaches. Duration of the headaches was noted to be one to two days and prostrating attacks were said to occur more frequently than once a month. The Veteran reported three to four debilitating migraines a month that caused him to not be able to do anything, including work, for approximately two days. In determining the appropriate rating(s) for the Veteran's headache disability, the Board notes that neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined "prostrating." "Prostration," however, is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). In light of these definitions and in consideration of the evidence of record, the Board finds that the Veteran's service-connected headache disability more nearly approximated the criteria for a 30 percent rating, but not higher, as of the August 27, 2006, effective date of his award of service connection. The Board finds that the Veteran's reported symptoms have been relatively consistent during the pendency of his appeal. Since filing his claim, he has reported headaches accompanied by light and sound sensitivity, nausea, vomiting, dizziness, and vision changes. A VA examiner has also indicated difficulty forming words or expressing ideas during a severe headache. Further, the Veteran has maintained that he has experienced a constant headache since service and has reported having at least two to three "migraines" a month. Although during a July 2007 VA examination the frequency of headaches was noted to be several times per year, but less than monthly, it is unclear whether that report was referencing the frequency of headaches in general or only of headaches associated with sinus attacks. Given the Veteran's other assertions of constant headaches, the Board will assume the latter. Although the medical evidence of record does not specifically indicate that the Veteran's headaches could be considered "prostrating," in light of his associated symptomatology and the constant nature of his headache, the Board concludes that the Veteran's headaches were more aptly described by the criteria necessary for a 30 percent rating, but not higher, prior to November 11, 2008, such that a 30 percent rating is assigned as of the August 27, 2006, effective date of his award of service connection. The Board has also considered whether a rating of 50 percent rating is warranted at any point prior to May 31, 2012, but finds that it is not. In this regard, the Board points out that by the Veteran's own admission, his headaches were not initially debilitating. It was not until the May 2012 VA examination that the Veteran reported having days where he was completely non-functional, to include being unable to work, due to his migraines. Notably, the Veteran did not allege when the increase in severity first occurred and, given the absence of evidence regarding the severity of the Veteran's migraines from 2009 to 2012, the Board cannot conclude, based on the evidence of record, that a 50 percent rating is warranted prior to the date on which the evidence affirmatively shows an increase in disability. Although the Veteran alleged in April and November 2008 that his migraines were productive of severe economic inadaptability and contributed to his unemployability, the evidence of record suggests otherwise, as an April 2009 filing reveals that the Veteran was then "going on the fifth year in [his] job." The Veteran also did not provide any details to support his statement that his headaches were productive of severe economic inadaptability, such as reporting the number of days missed from work on account of his headaches. Moreover, while the Veteran had always maintained experiencing more than one migraine a month, the evidence of record dated prior to May 2012 does not suggest that his migraines were "completely prostrating." Indeed, although the Veteran's associated symptoms have been relatively consistent throughout the claims period, the evidence does indicate an increase the severity of those symptoms, as demonstrated by the Veteran's assertion in May 2012 that he then had days where he was completely nonfunctional on account of his headaches. The evidence does not suggest such a level of disability prior to that date and as such, the Board finds that the evidence does not support a rating greater than 50 percent prior to May 31, 2012. See 38 C.F.R. § 4.124a, DC 8100. Regarding the evaluation of the Veteran's headache disability since May 31, 2012, the Board notes that the currently assigned 50 percent rating is the highest schedular rating available under DC 8100. The Board has considered alternative DCs relating to neurological conditions, but finds that they are inapplicable in this case. See 38 C.F.R. § 4.124a. The above determinations are based upon consideration of applicable rating provisions. The Board finds that the Veteran's reported symptoms are described by the rating criteria. A review of the VA treatment records and examination reports fails to reveal symptomatology not contemplated by the rating criteria. Nor does the Veteran assert that he experiences symptoms not contemplated by the rating criteria. Indeed, the symptoms reported are those that a VA clinician indicated would be associated with the type of migraine headache for which the Veteran is service connected. Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual" such that "the available schedular evaluation[] for [his service-connected disability is] inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating at any point during the claims period is not warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2013). B. Left Knee Disability As noted in the introduction, the Veteran's service-connected left knee disability, characterized as tendonitis, has been evaluated as 10 percent disabling from August 27, 2006, to March 30, 2009, and as 20 percent disabling from March 30, 2009, which evaluations have been assigned under 38 C.F.R. § 4.71a, DCs 5024 and 5258, pertaining to tenosynovitis and dislocation of the semilunar cartilage, respectively. In accordance with DC 5024, tenosynovitis, is to be rated based on limitation of motion of affected part, as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Applicable regulations provide that degenerative arthritis is be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Painful motion of a major joint or groups of minor joints caused by arthritis, established by x-ray, is deemed to be limited motion and entitled to the minimum 10 percent rating even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Diagnostic codes 5260 and 5261 pertain to limitation of motion of the knee. Under DC 5260, a noncompensable evaluation is assigned where flexion is limited to 60 percent; a 10 percent evaluation is assigned where flexion is limited to 45 degrees; a 20 percent evaluation is assigned where flexion is limited to 30 degrees; and a 30 percent evaluation is assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted if extension is limited to 5 degrees; a 10 percent rating is warranted if extension is limited to 10 degrees; a 20 percent rating is warranted if extension is limited to 15 degrees; a 30 percent rating is warranted if extension is limited to 20 degrees; a 40 percent rating is warranted if extension is limited to 30 degrees; and a 50 percent rating is warranted if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5258, a singular 20 percent rating is assigned for dislocated semilunar cartilage "with frequent episodes of 'locking,' pain, and effusion into the joint." 38 C.F.R. § 4.71a, DC 5258. Evidence relevant to the issue of the appropriate rating for the Veteran's service-connected left knee disability includes an August 2006 VA treatment record noting the Veteran's complaints of left knee pain. He reported a sharp, shooting pain on exertion, "popping," and giving way. Physical examination failed to reveal swelling or discoloration. The knee was nontender to all area of palpation. The Veteran was noted to have a full range of motion, without pain, and there was no evidence of laxity or subluxation. In November 2006, the Veteran alleged that since being knocked off of a tank in service, he has experienced pain and swelling and has had problems with his knee giving out while walking. The Veteran was afforded a general medical examination in January 2007. He reported sustaining a left knee injury in service and indicated a progressive worsening of pain since that time, stating that any kind of movement, weight bearing, prolonged standing, or walking aggravated his pain. He denied incapacitating episodes, but did indicate that the pain made it hard for him to do his job, which involved bagging groceries and pushing shopping carts. The Veteran stated that he was able to sit and drive a car with no problem and walk four to five blocks comfortably. He denied the use of assistive devices or problems performing household jobs such as sweeping, washing the dishes, and mowing the lawn. Range of motion testing revealed flexion to 100 degrees and a two degree loss of extension; however, the examination report indicates that those measurements pertained to the right knee. It is not apparent from the examination report whether left knee range of motion was tested or whether the report erroneously indicated that testing was for the right, as opposed to left, knee. A diagnosis of tendonitis involving the left knee joint was rendered. In a May 2007 filing, the Veteran endorsed daily pain and swelling and reported the daily use of anti-inflammatory pain medication. He indicated that a VA physician had informed him that he may need knee surgery to repair a possible tear or damage to the tendon/muscle. A May 2007 VA treatment record noted a full range of motion. There was some pain noted on anterior-posterior stress testing, but no pain on lateral stress testing. A June 2008 treatment record notes that the Veteran presented with a request for a knee brace. Examination of the left knee revealed effusion and a collapsed tender anterior tibia bursa and medial/lateral joint margins. The assessment was internal derangement of the left knee. The Veteran submitted a copy of a July 2008 physical profile, which noted a permanent profile of "2" for the lower extremities and of "3" for psychiatric. It was noted that the Veteran had been placed on profile due to PTSD, post-concussive syndrome, and knee pain. In February 2009, the Veteran reported an intolerable level of knee pain. It was noted that he would be receiving a knee brace that month. A treatment entry dated on March 30, 2009, contained a provisional diagnosis of a tear of the lateral cartilage or meniscus, left knee. It was recommended that the Veteran wear his knee brace to protect his knee from further injury. In an April 2009 filing, the Veteran asserted that his knee brace was prescribed specifically for instability. He also alleged that his functional abilities were limited on account of pain and weakness. The Veteran was afforded a VA examination in May 2012, the report of which showed diagnoses of tendonitis and a torn meniscus, left knee. It was noted that the Veteran wore a stiff custom made brace to eliminate medial and lateral movement of the left knee. The Veteran reported that when not wearing the knee brace, his left knee would randomly give out. He also reported flare ups of knee pain when standing or walking for prolonged periods, which flare ups were often accompanied by swelling. Range of motion testing revealed flexion to 140 degrees or greater and extension to zero degrees, with no objective evidence of painful motion. Repetitive testing did not result in decreased motion and the only functional loss noted was painful motion. All performed joint stability tests were normal and there was no evidence or history of recurrent patellar subluxation or dislocation. Muscle strength was also normal. The Veteran was noted to have sustained a meniscus tear and frequent episodes of joint pain and effusion were indicated. X-rays were taken, the reports of which failed to reveal any evidence of arthritis or patellar subluxation. Upon review of the evidence, the Board finds that the Veteran's left knee disability has been appropriately rated and there is no basis upon which to assign ratings greater than that which are currently in effect under any applicable DC. Notably, the evidence of record fails to reveal that the Veteran has, at any point during the appeal period, been noted to have limitation of extension or flexion to even a non compensable degree. See 38 C.F.R. § 4.71a, DCs 5260, 5261. Accordingly, a rating greater than 10 percent is not warranted based on actual limitation of motion caused by the Veteran's left knee disability because the Veteran is able to achieve flexion and extension beyond that which would be considered even noncompensable. The Board notes that, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. In the instant case, the Veteran has complained of pain, giving way, weakness, and fatigue. The Board finds, however, that the Veteran's complained of symptoms are accounted for by his 10 percent disability evaluation and there is no basis upon which to assign a higher rating. Indeed, it appears that, prior to March 30, 2009, the Veteran's disability was being rated on the basis of painful motion, as the medical evidence of record demonstrates that the Veteran does not experience an objective compensable limitation of motion. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that application of 38 C.F.R. § 4.59, which provides that "[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint" is not limited to arthritis claims). The Board finds, however, that a rating greater than 10 percent is not warranted under any of the Deluca factors, as an evaluation in excess of the minimum compensable rating must be based on demonstrated functional impairment. In this regard, the Court has affirmed that pain itself does not constitute functional loss and "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' 38 C.F.R. § 4.40, in order to constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Thus, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. Here, the Veteran is able to achieve flexion to at least 100 degrees and extension to -2 degrees (assuming that the findings on examination in January 2007 did in fact pertain to the left, as opposed to right, knee). The Veteran has also reported being able to sit and drive with no problem, walk four to five blocks comfortably, and perform household jobs such as sweeping, washing the dishes, and mowing the lawn without problems. Based on this evidence, the Board finds that the Veteran's pain does not result in a functional loss equivalent to that which would warrant a rating greater than the currently assigned 10 percent. Further, although the Veteran has indicated flare-ups, he has not described them as incapacitating, nor do any of the VA treatment records note such problems. Examination of the Veteran has also failed to reveal any additional weakness, fatigability, incoordination, restricted range of motion, or functional impairment with repetitive testing. From a functional standpoint, it has been noted that the Veteran has had pain on movement; however, he has clearly been able to achieve a greater range of motion than that required for a rating in excess of 10 percent disability rating, even taking into account the DeLuca factors, at all times during the claims period. As discussed above, the Veteran's disability rating was increased to 20 percent, effective from March 30, 2009. The DC under which the Veteran was rated was also changed from DC 5024 to 5258. This change in DC reflected the Veteran's later affirmatively diagnosed meniscus tear. The March 30, 2009, VA treatment record is the earliest indication of record that the Veteran may have sustained a tear in the lateral cartilage or meniscus of his left knee and as such, there is no basis upon which to assign a rating under that DC prior to March 30, 2009. There is also no basis upon which to assign a rating greater than 20 percent at any point since March 30, 2009, under that DC, as DC 5258 provides for a single rating of 20 percent. 38 C.F.R. § 4.71a, DC 5258. The Board has also considered the Veteran's complaints of "giving way" and the evidence showing that the Veteran wears a custom made brace to prevent medial and lateral movement of the left knee joint. At the outset, the Board notes that a veteran who has arthritis and instability of the knee may be rated separately for arthritis and instability or subluxation of the knee, provided that a separate rating is based upon additional disability. See VAOPGCPREC 23-97. In the instant case, however, there is no evidence that the Veteran indeed has arthritis, despite the regulatory criteria directing the Veteran's disability rated under DC 5024 was to be rated "as arthritis." Indeed, recent x-rays were normal, showing no evidence of arthritis. As such, the Veteran would not be entitled to a separate rating even if subluxation or lateral instability were evident. The Board also finds that despite the Veteran's subjective complaints, there is no objective evidence to support a rating under DC 5257 at any point during the claims period. Indeed, none of the objective tests utilized to reveal evidence of instability were positive and the May 2012 VA examiner indicated no evidence or history of recurrent patellar subluxation. As for the Veteran's knee brace, even if the Veteran's brace was prescribed to prevent movement, given the lack of objective evidence suggestive of actual instability of the knee, the Board cannot conclude that a rating under DC 5257 is permissible. The Board has also considered whether the Veteran may be entitled to a higher rating at any point under the following DCs applicable to disabilities of the knee: (1) DC 5256 which pertains to disabilities involving ankylosis of the knee; and (2) DC 5262 which is used to evaluate impairments of the tibia and fibula. 38 C.F.R. § 4.71a, DCs 5256, 5262 (2013). Because, however, there is no evidence of ankylosis of the left knee joint or any impairment of the tibia or fibula, neither DCs 5256 nor 5262 is for application. Based on the evidence of record, the Board can finds no basis upon which to assign ratings greater than those currently assigned for the Veteran's service-connected left knee disability at any point during the claims period. In this regard, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013). The above determinations are also based upon consideration of applicable rating provisions. The symptoms experienced by the Veteran, to include pain, weakness, and fatigue, are specifically contemplated by the rating criteria in consideration of the relevant regulations and caselaw. Without evidence of symptomatology not contemplated by the rating schedule, the Board finds that referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. Thun, supra; 38 C.F.R. § 3.321(b)(1) (2013). C. Separate Rating-Cognitive Disorder By way of background, in a March 2007 rating decision, service connection was granted for PTSD, which was then rated as 50 percent disabling, effective from August 27, 2006. In an August 2007 rating decision, service connection was granted for a cognitive disorder, not otherwise specified (NOS); the RO explained that because the cognitive disorder was a mental disorder, it would be added as a service-connected issue along with the Veteran's PTSD, but that the evaluation would remain the same. The Veteran's disability was thus recharacterized as PTSD with cognitive disorder, NOS. In a February 2008 SOC, a Decision Review Officer increased the Veteran's PTSD with cognitive disorder disability rating to 70 percent, effective from August 27, 2006. The Veteran maintains that he is entitled to a separate rating for his cognitive disorder, arguing that it is a distinct mental disorder resulting from his TBI and is not manifested by overlapping symptomatology. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (providing that separately diagnosed psychiatric disorders may be service connected as distinct disabilities, but concluding that "two defined diagnoses constitute the same disability for purposes of [38 C.F.R. §] 4.14 if they have overlapping symptomatology"). In support of his argument, the Veteran points to the report of a May 2007 VA examination wherein the examiner expressed her belief that "it is more likely than not that [the Veteran's] memory impairment is beyond that typically associated with PTSD and includes a contribution from post-concussive syndrome," noting that she had not, in her clinical experience of treating/evaluating hundreds of veterans with memory impairment associated with PTSD, seen the degree of functional impairment reported by the Veteran. The examiner stated, however, that she could not attribute a degree of causality to each disorder without resort to mere speculation. The examiner also discussed the Veteran's reports of "stuttering," but noted that what he was experiencing was brief periods of difficulty finding words or expressing ideas when experiencing a severe headache. The examiner thus concluded that the Veteran's complaints of stuttering were associated with post-concussive headaches and not related to the Veteran's PTSD. Ultimately, the examiner diagnosed PTSD and a cognitive disorder, NOS, noted to be memory impairment related to post-concussive syndrome. In April 2012, the Board remanded the matter for the Veteran to be scheduled for a TBI examination, and neurological examination if deemed necessary, to determine the etiology of the Veteran's various symptoms. In May 2012, the Veteran was examined by a neuropsychologist. The Veteran reported the details of his in-service TBI, noting that after an explosion he experienced a headache, dizziness, and nausea. He indicated going out on another mission eight hours later and reported no cognitive difficulties, stating that he was able to perform his work duties without difficulty. The Veteran reported being subjected to numerous subsequent explosions, but reported no additional concussive injuries. The examiner noted that a March 2006 brain MRI was unremarkable, save for mild cerebellar ectopia. A private treatment report dated that same month noted no dizziness, vertigo, fainting, staring spells, confusion, disorientation, memory lapses or loss, lost periods of time, focal disturbances, or motor disturbances. The examiner also noted that on his post-deployment medical record, the Veteran indicated headaches during his deployment, but denied current or previous memory problems. On his post-deployment health assessment, the Veteran again denied memory loss or amnesia. The examiner also noted that there was no mention of a concussion or post-concussive symptoms in an August 2006 report of medical history. Regarding the findings contained in the May 2007 VA examination report, the May 2012 examiner noted that the previous examiner's opinion was based on the subjective complaints of the Veteran, as she had administered only a very simple measure of mental status and did not obtain a valid objective measurement of memory function. The May 2012 VA examiner then went through the 10 facets of TBI-related cognitive impairment and subjective symptoms, noting, among other things, a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing. Motor activity was also noted to be normal, and there was no evidence of sensory dysfunction or any neurologic disorder. Neuropsychological testing was performed. Specifically, the Veteran was administered two measures sensitive to poor effort and motivation during the examination and passed both of them. Attention was considered a relative weakness, but the Veteran's memory performance was intact and he was able to retain 100 percent of the learned material and two measures of verbal memory. Overall, the examiner found that the Veteran's neurocognitive screening demonstrated no objective evidence of memory impairment. The examiner noted that the Veteran did not report memory problems after the initial TBI, but rather, had indicated forgetfulness over the last few years. The examiner found that this weighed against a temporal relationship between the in-service TBI and current memory impairment. The examiner also noted that the Veteran indicated no other cognitive difficulties. (In this regard, the Board notes that the RO indicated that the Veteran's cognitive disorder was claimed as memory loss, dizziness, blurry vision, stuttering, and an inability to recall basic math problems, names and places. The Veteran, however, has consistently maintained that his dizziness and blurred vision was not related to his TBI but was associated with his headache disorder.) The examiner noted that cognitive screening showed a relative weakness on a single measure of attention, which may be an arbitrary finding or may reflect mild cognitive inefficiency secondary to PTSD or even medication effects, as the Veteran takes sumatriptan, which is known for contributing to cognitive inefficiency. The examiner also pointed out that meta-analyses and research suggested that there are no persistent cognitive residuals associated with a remote concussion and to the extent that they are present, they have been shown to be caused by non-concussion related factors, including psychiatric disturbances. Upon review of the evidence of record, the Board finds that the Veteran is not entitled to a separate rating for his cognitive disorder and that, to the extent that the Veteran indeed has a cognitive disorder, its manifestations are being compensated for by his 70 percent rating for his service-connected PTSD with cognitive disorder. In this regard, the Board notes that 38 C.F.R. § 4.126 (c) provides: Delirium, dementia, and amnestic and other cognitive disorders shall be evaluated under the general rating formula for mental disorders; Neurologic deficits or other impairments stemming from the same etiology (e.g. a head injury) shall be evaluated separately and combined with the evaluation for delirium, dementia, or amnestic or other cognitive disorder (see § 4.25). 38 C.F.R. § 4.126(c) (2013) (emphasis added). Read literally, this regulation suggests that a cognitive disorder and another mental disorder stemming from the same etiology would be entitled to separate evaluations. Here, the evidence shows that the Veteran's PTSD is a result of his combat exposure in service, to include having his vehicle hit by an improvised explosive device (IED) on four separate occasions. Thus, if it were shown that that the Veteran suffered from cognitive impairments also related to the IED incident, 38 C.F.R. § 4.126(c) would seem to mandate separate ratings. In the instant case, however, the Board finds that the most probative evidence of record fails to show a cognitive disorder resulting from the IED incident or in-service TBI, such that separate ratings could be warranted. Although the May 2007 VA examiner diagnosed a cognitive disorder, which she indicated to be memory impairment related to post-concussive syndrome, the May 2012 VA examiner explained why her conclusions should be afforded little weight, as she did not obtain a valid objective measurement of memory function. Notably, the May 2012 VA examiner conducted a battery of tests designed to identify TBI-related cognitive impairments, but found that none existed. The May 2012 examiner also noted that May 2007 VA examiner's findings were based on the subjective complaints of the Veteran, as she had administered only a very simple measure of mental status. The Board finds the May 2012 VA examiner's conclusions to be fully explained and supported by the evidence stated therein. Further, as the May 2012 VA examiner's findings are based on objective testing designed specifically to identify TBI-related cognitive impairment, the Board places more weight on the findings contained in that examination report than it does on those included in the May 2007 VA examination report, as there is no indication that the May 2007 VA examiner conducted any objective testing. Rather, the May 2007 VA examiner's conclusion is based on her evaluation of the Veteran's level of memory impairment as compared to other veterans whom she had treated. Notably, however, the May 2007 VA examiner did not discuss any of the evidence where the Veteran denied having memory problems after his TBI, which undermines her conclusion that the Veteran suffers from post-concussive memory loss. In sum, the Board finds that the most probative evidence of record fails to suggest that the Veteran suffers from a TBI-related cognitive disorder. Further, to the extent that the Veteran has a cognitive disorder manifested by memory loss, the May 2012 VA examiner suggested that any mild cognitive inefficiency is related to the Veteran's PTSD. As it is clear that memory loss is also a component of the Veteran's PTSD, the Board finds that any cognitive disorder and PTSD constitute a singular disability for the purposes of assigning a disability rating. 38 C.F.R. § 4.14 (2013) (prohibiting "pyramiding," or the issuance of separate evaluations, for two or more disabilities with duplicative or overlapping symptoms). Here, the Board finds that the Veteran's memory loss is compensated for by the 70 percent evaluation for PTSD and cognitive disorder. The Board also finds that the evidence of record fails to suggest that the Veteran suffers from any neurologic disorder as a result of his TBI, such that a separate rating could be assigned in accordance with 38 C.F.R. § 4.126a. Moreover, as to the Veteran's complaints of "stuttering," that symptom has been attributed to the Veteran's headache disorder and the Board has considered it in its evaluation of the Veteran's headache rating. Accordingly, for the reasons set forth above, the Board finds that a separate rating for the Veteran's cognitive disorder must be denied. ORDER Entitlement to an initial disability rating of 30 percent for migraine headaches is granted from August 27, 2006, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating greater than 50 percent from May 31, 2012, for migraine headaches is denied. Entitlement to an initial disability rating greater than 10 percent from August 27, 2006, to March 30, 2009, and greater than 20 percent thereafter for a left knee disability is denied. Entitlement to a separate rating for a cognitive disorder is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs