Citation Nr: 1337072 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-01 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for radiculopathies of the right upper extremity, to include as secondary to degenerative changes at C5-6. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee strain with instability and scar. 3. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeals from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and a September 2008 rating decision issued by the RO in Roanoke, Virginia. In September 2011, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes among the issues previously remanded was service connection for radiculopathies of the upper extremities. However during the pendency of the appeal, in an April 2012 rating decision, the Appeals Management Center (AMC) granted service connection for radiculopathies of the upper left extremity. As this represents a full grant of benefit of the service connection claim sought, is it no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned. See 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). Therefore, only the issue of service connection for radiculopathies of the upper right extremity remains before the Board. The April 2012 rating decision also increased the disability evaluation for migraine headaches from non-compensable to 30 percent disabling effective the date of service connection. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issue of entitlement to service connection for radiculopathies of the right upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee strain with instability and scar has resulted in no more than slight instability. 2. The Veteran's migraine headaches are manifested by several episodes a month with one to two days requiring rest, but have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left knee strain with instability and scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.59, 4.7la, Diagnostic Code 5257 (2013). 2. The criteria for an initial disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in September 2011. The Board specifically instructed the Appeals Management Center (AMC)/RO to send the Veteran an updated notification letter, obtain any outstanding records to include those from Dr. V.R.C., provide the Veteran an examination for his left knee disability, and to readjudicate the claims. Subsequently, the AMC sent the Veteran an updated letter in October 2011, treatment records from Dr. V.R.C. were obtained, he was provided an examination for the left knee in October 2011, and his claims were readjudicated in a March 2012 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in November 2006, prior to the April 2007 and September 2008 rating decisions, and in October 2011, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letters also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in the March 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). The November 2006 letter provided the Veteran with the notice required for the initial claims of service connection for migraine headaches and left knee disability. Service connection was subsequently granted, and the Veteran appealed the initial ratings assigned. In cases such as this, where service connection has been granted and initial disability ratings and effective dates have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided with multiple VA examinations during the appeal period. A review of the VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the disabilities. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in December 2006 for his migraine headaches and in October 2011 for his left knee. See 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). In his VA Form 9, Appeal to Board of Veterans' Appeals, received in January 2009, the Veteran contended that a December 2006 VA examination report was inadequate as the examiner did not use a goniometer to evaluate his left knee range of motion. The Veteran also asserted that the examiner incorrectly indicated that the use of his knee was not limited by pain, weakness, and lack of endurance after repetitive use. The Board notes that the Veteran was subsequently afforded examinations in September 2009 and October 2011. Neither the Veteran nor his representative have indicated any deficiencies with the most recent examinations/ reports. Therefore, the Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312 The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has declined the opportunity to provide testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2013). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Left Knee The Veteran essentially that his left knee strain is more disabling than contemplated by the current 10 percent evaluation. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2013). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2013). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It 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. 38 C.F.R. § 4.59 (2013). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2013). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2013). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will 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, Diagnostic Code 5010 (2013). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2013). The Veteran's left knee disability has been evaluated under Diagnostic Code 5257 for evaluation for other impairment of the knee, to include recurrent subluxation or lateral instability: 30 percent for severe, 20 percent for moderate, and 10 percent for slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). On VA examination in December 2006, evaluation of the Veteran's left knee as to anterior/posterior cruciate ligaments stability test was abnormal with slight instability. Medial/lateral meniscus ligaments stability test and medial/lateral meniscus test were within normal limits. The September 2009 VA examination report showed that the Veteran's left knee showed no signs of subluxation. Also, medial/lateral collateral ligaments stability test, anterior/posterior cruciate ligaments stability test and medial/lateral meniscus ligaments stability test were all within limits. Most recently on VA examination in October 2011, the Veteran reported that he had more instability than giving way and his left knee instability had been diagnosed as slight to moderate. It was noted that there was looseness from a prior ligament injury, and that he did not fall. On stability evaluation, the examiner noted that while sitting on the end of the examination with knees flexed to 90 degrees, the Veteran's knee could be straightened out to full extension but the last five degrees of full extension were painful and he had some difficulty passively extending the knee. There was also slight anterior cruciate ligament laxity, and the examiner estimated the instability to be slight. He also found that the lateral and medial collateral ligaments were intact and checked in at 30 and 90 degrees of flexion and full extension. There was no joint effusion or swelling of the knee, and there was mild patello-femoral compression discomfort of the left knee with some crepitus but no instability. Based on the evidence of record, the Board finds that a higher evaluation is not warranted for the Veteran's left knee instability. The evidence reflects that his symptoms are no more than slight as contemplated by the current 10 percent evaluation. Aside from the Veteran's report to the October 2011 VA examiner that his left knee instability has been diagnosed as slight to moderate, there is no evidence that his symptoms are more than slight in severity. The clinical evidence has consistently shown mild symptoms, and the VA examiners have all estimated that his impairment is mild. Therefore, a higher evaluation is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The Board notes that separate ratings may be assigned for knee disabilities under Diagnostic Codes 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9- 98. In this case, there is no evidence of arthritis to warrant a separate rating under Diagnostic Code 5003 (2013). The Board will determine whether he meets the criteria for a higher evaluation under other applicable diagnostic codes. Under Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a zero percent evaluation, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation of flexion of the knee to 30 degrees warrants a 20 percent evaluation, and limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Related to that code is Diagnostic Code 5261, which provides that limitation of extension of the knee to 5 degrees warrants a zero percent evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension of the knee to 15 degrees warrants a 20 percent evaluation, limitation of extension of the knee to 20 degrees warrants a 30 percent evaluation, limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Normal knee motion is from zero degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). The December 2006 VA examination report showed left knee range of motion from 0 to 140 degrees, the September 2009 VA examination report showed left knee range of motion from 0 to 130 degrees, and the October 2011 VA examination report showed left knee range of motion from 0 to 120 degrees with some discomfort in the final 5 degrees of flexion. The Veteran's limitation of motion does not closely approximate the level of functional impairment warranted by compensable evaluations under these criteria. As noted above, when actual measurements were reported, the Veteran had either full or nearly full range of motion. Thus, flexion has not been limited to anywhere near 45 degrees or less, such that a compensable evaluation would be assigned under Diagnostic Code 5260. In addition, given that extension has not been limited to 10 degrees or more, a compensable evaluation under Diagnostic Code 5261 is also not warranted. The Board has also considered the effect of pain and weakness in evaluating the Veteran's disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); Deluca v. Brown, 8 Vet. App. 202 (1995). The December 2006 VA examination report noted that the left knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Thereafter, the September 2009 VA examination report showed that on repetitive use the left knee was additionally limited by pain and fatigue, with fatigue having the major functional impact. The left knee was not however additionally limited by weakness, lack of endurance, or incoordination. Most recently, the October 2011 VA examination report noted that on repeated motion, there was some discomfort in the final five degrees of flexion without further loss of flexion. The examiner specifically determined that there was no further loss of range of motion, endurance, increase of fatigue, weakened moments, or incoordination secondary to pain from repetitive motion. He further stated that it would be speculative to comment on further loss of motion during flare-ups. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Also, the Veteran has not demonstrated any additional loss of range of motion on repeated use. Even affording the Veteran the benefit of the doubt for his discomfort in the final five degrees of flexion in October 2011, the Board finds that such loss of range of motion is insufficient to warrant a higher 20 percent evaluation which contemplates limitation of flexion of the knee to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Thus, even when considering the Veteran's complaints of pain, the criteria for higher ratings based on the Veteran's range of motion for the left knee is not approximated and a higher evaluation is not warranted on this basis. With respect to potential application of other criteria, the evidence does not support an award for an increased rating for the left knee under Diagnostic Code 5256 for ankylosis of the knee; Diagnostic Code 5258 for dislocated, semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; Diagnostic Code 5259 for symptomatic removal of semilunar cartilage; or Diagnostic Code 5262 for impairment of tibia and fibula as none of these disabilities have been demonstrated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262 (2013). Additionally, while genu recurvatum has been noted, the maximum evaluation under this code is 10 percent which would not entitle the Veteran to a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5263 (2013). The Board also notes that throughout the record, scars on the left knee were noted. The largest one was well-healed and on the anterior lateral aspect of the left knee, was not sensitive, and measured 3 cm by 1.4cm. There were also 2 barely visible arthroscopic scars on the anterior medial aspect of the left knee which were not tender and measured 0.8 mm; there was another scar on the mid medial left knee measuring about 5 mm long and was not sensitive. Additionally, there were two barely visible old operative scars, one just lateral to the left quadriceps tendon and one medial to the left quadriceps tendon which was not sensitive and measured 2 mm long. See October 2011 VA examination report. As there is no evidence that the scars are deep or cause limitation of motion, cover an area greater than 144 square inches, unstable, or painful on examination; or limit the function of the knee. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2013). As such, entitlement to separate disability ratings for the Veteran's scars is not warranted. In sum, the Board finds that an evaluation in excess of 10 percent for the left knee disorder is not met. See Fenderson, supra. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Migraine Headaches The Veteran essentially contends that his migraine headaches are more disabling than contemplated by the current 30 percent evaluation. The Veteran's migraine headaches have been evaluated under Diagnostic Code 8100 for migraines. This code is deemed by the Board to be the most appropriate, primarily because it pertains specifically to the diagnosed disability in the Veteran's case (migraine headaches). The Board can identify nothing in the evidence to suggest that another diagnostic code or codes would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that Diagnostic Code 8100 is the most appropriate in this case. Under Diagnostic Code 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a , Diagnostic Code 8100 (2013). A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." On VA examination in December 2006, the Veteran reported recurring migraine headaches attacks which resulted in severe pain, nausea, sensitivity to light and noise, and throbbing. These symptoms occurred intermittently, up to three times a month with each episode lasting from 30 minutes to six hours; with the average episodes lasting three hours. He was able to go to work, but required medication (Imitrex and Motrin). His ability to perform daily functions during flare-ups was extremely limited, and severe attacks required bed rest. The Veteran's private physician, V.R.C., M.D. submitted letters throughout the appeal period indicating that she had treated the Veteran since September 2007. Dr. C noted that the Veteran's migraine headaches averaged three per month, and one to two of these episodes resulted in the Veteran having to lie down and rest for the entire day as he was not able to function. He took five to six tablets of Imitrex a month to treat his headaches. See e.g. March 2010 and October 2011 letter. Accompanying treatment records from Dr. C dated from September 2007 to November 2010 confirm the frequency of the Veteran's migraine headache episodes. Additionally, a September 2007 record showed that he had four to five migraine headaches a month since 1993. A November 2007 VA treatment records noted the Veteran experienced two to three headaches a month for which he took Imitrex. In his VA Form 9, Appeal to Board of Veterans' Appeals, received in January 2008, the Veteran stated that he had on average three headaches a month which were prostrating and required bed rest. He indicated that "[a]lthough the prostrating headaches occur several times per month, they have no impact on [his] economic adaptability. . . [and] a disability rating of 30 percent is warranted." Additionally, in September 2009 and October 2011 letters, the Veteran's wife noted that the Veteran had headaches with characteristic prostrating attacks more than once a month over several months. She indicated that the Veteran required bed rest due to physical exhaustion and pain, and these episodes affected his ability to function. Based on the foregoing, the Board finds that the Veteran's migraine headaches do not meet the criteria for an evaluation in excess of the current 30 percent rating. Although the Veteran experienced several episodes of migraine headaches per month, some of which require bed rest, there is no indication that such episodes are completely prostrating and prolonged productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). The evidence reflects that he had up to five migraine headaches a month requiring medication and rest which is contemplated in the current 30 percent evaluation. In fact, he was able to go to work with the aid of medication. Significantly, the Veteran himself has stated that his disability has not resulted in economic adaptability. In sum, the Board finds that an evaluation in excess of 30 percent for migraine headaches is not met. See Fenderson, supra. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other Considerations In reaching the above conclusions with respect to the Veteran's increased rating claims, the Board has not overlooked the Veteran's statements with regard to the severity of his left knee and migraine headache disabilities. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain, frequency of episodes of migraine headaches, severity of his headaches. . .; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Any lay evidence in this case was provided during VA examinations and clinical visits. The Board has considered the Veteran's reports along with findings from the medical evidence. The Board notes the pertinent rating criteria contain diagnostic criteria that requires medical expertise (such as measuring range of motion, or sufficient enough to warrant the prescription of bed rest, etc.) to evaluate the Veteran's knee disability. The record does not reflect that the Veteran is competent to make such medical opinions. Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight with regard to the left knee. However, the Board had taken into account the Veteran and his wife's statements with regard to the frequency and severity of his migraine headaches as they are competent and credible, and their statements have been afforded great probative weight in this case. The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's knee and migraine headache disabilities with the established criteria shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. The Veteran's complaints of pain, stiffness, weakness, and instability are specifically contemplated in the criteria for evaluating knee disabilities. Likewise, the Veteran's report of incapacitating headaches are contemplated in the criteria for evaluating migraine headaches. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's disabilities. See 38 C.F.R. § 4.1 (2013). In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his disabilities render him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee strain with instability and scar is denied. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches is denied. REMAND The Board remanded the claim for service connection for radiculopathies of the right upper extremity, to include as secondary to degenerative changes at C5-6, to obtain a neurological examination to determine whether any of the Veteran's neurological symptoms were related to or a progression of his service-connected cervical spine disability. The Veteran was provided an examination in October 2011, the report of which pertinently noted the Veteran's complaints of shoulder weakness. He also indicated tingling in the left hand involving most of the digits two to three times per week lasting a few seconds, and in both the fourth finger and index finger radiating down. Based on the Veteran's reports weakness in the shoulder area, the examiner opined that it was less likely than not that weakness was secondary to his cervical spine disability as it would be speculative to provide an opinion. Additionally, the examiner stated that it was as likely as not the transient tingling in the Veteran's hand was secondary to the cervical spine disability. As a result of this examination report, the AMC granted service connection for connection for radiculopathies of the left upper extremity, secondary to degenerative changes at C5-6, but continued to deny service connection for the right upper extremity radiculopathies as there was no indication that the right side was impaired. The Board notes that the VA examiner found that the Veteran's left upper extremity radiculopathy was secondary to service-connected cervical spine disability based on the Veteran's reported symptoms. However, subsequent to that examination report, the Veteran's representative has maintained that the Veteran does indeed have symptoms in his right upper extremity as well. See October 2013 Informal Hearing presentation. The Veteran is competent to report radiculopathy symptoms, which indeed were the basis for the grant of service connection for his upper left extremity. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Therefore, on remand, the Veteran should be afforded another examination to determine the nature and etiology of any current right upper extremity radiculopathies. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination, with an orthopedic spine surgeon or a neurosurgeon, to determine the nature, etiology, and severity of the claimed neurological disorder of the upper right extremity. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All indicated tests and studies (include necessary radiological studies such as x-rays, MRIs, or nerve conduction studies) should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should determine whether any of the Veteran's right upper extremity neurological symptomatology is medically related to, or is a progression of, his service-connected cervical spine disability, and also, should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the Veteran's cervical spine disability. The examiner should also comment on the frequency and duration of any incapacitating episodes (episodes of signs and symptoms that require bed rest prescribed by a physician and treatment by a physician, if any). The examiner should comment on the chronicity of the symptoms, whether such symptoms are constant, or nearly constant, and the effect of such symptoms on the Veteran's daily life and economic adaptability. A complete rationale should be given for all opinions and conclusions expressed. Such rationale must include a discussion of all relevant evidence in the claims file (to include but not be limited to the Veteran's service treatment records, post-service treatment records, and the neurological and orthopedic findings expressed in the December 2006, September 2009, and October 2011 VA examination reports), relevant findings on examination and from the Veteran's provided medical history, and applicable medical principles. All findings, conclusions, and supporting rationale should be expressed in a typewritten report. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs