Citation Nr: 1607636 Decision Date: 02/26/16 Archive Date: 04/01/16 Citation Nr: 1607636 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 07-37 303 ) DATE FEB 26 2016 ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee Osgood-Schlatter's disease, post operative (left knee disability). 3. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches. REPRESENTATION Veteran represented by: James Fausone, attorney ATTORNEY FOR THE BOARD Jebby Rasputnis, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984 and from October 2003 to February 2005. This matter was last before the Board of Veterans' Appeals (Board) in October 2011 on appeal from November 2006 and April 2007 rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In October 2011, the Board denied in part, and remanded in part, the appeal. The Board notes that, subsequent to the October 2011 decision, the remanded issue of service connection for posttraumatic stress disorder (PTSD) was granted in a March 2015 rating decision; as a result, that issue is not herein addressed. Further, as the Board's October 2011 decision granted an increase from 10 percent to 30 percent for migraine headaches, that issue is recharacterized on the first page of this vacatur to reflect that the 30 percent rating remains in effect. ORDER TO VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015). The Veteran's representative did not receive any notice from the Board in advance of the October 2011 decision and the October 2011 decision incorrectly identified the Veteran's representative. Accordingly, the October 21, 2011, Board decision regarding the issues of entitlement to service connection for hypertension, and entitlement to increased ratings for left knee and migraine headache disabilities (specifically, for migraine headaches, entitlement to a rating in excess of 30 percent), is vacated. 38 C.F.R. § 20.904(a)(1). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Citation Nr: 1139167 Decision Date: 10/21/11 Archive Date: 10/25/11 DOCKET NO. 07-37 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee Osgood-Schlatter's disease, post operative (left knee disability). 3. Entitlement to an initial evaluation in excess of 10 percent for migraine headaches. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984 and from October 2003 to February 2005. This matter has come before the Board of Veterans' Appeals (Board) on appeal from November 2006 and April 2007 rating decisions of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In an August 2008 rating decision, the RO granted a separated 10 percent evaluation for instability of the left knee, effective June 11, 2008, and denied a temporary total evaluation based on surgery requiring convalescence. In August 2011, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Veteran has claimed short periods of convalescence surrounding his knee surgeries, which are addressed below. However, the record does not suggest, and the Veteran does not allege, that his left knee disability has rendered him unemployable. Indeed, the record shows that he is employed full-time and has been employed throughout the appeals period. As such, Rice is inapplicable to this case. The issue of entitlement to service connection for PTSD 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. Blood pressure readings during service were consistently below 90mm. diastolic pressure and below 160 mm. for systolic pressure; there is no showing of diastolic blood pressure predominantly greater than 90 mm. or systolic pressure predominantly greater than 160 mm during the first post-service year. 2. There is no x-ray evidence of left knee arthritis during the appeals period, and no showing of limitation of flexion to 30 degrees or limitation of extension to 10 degrees. 3. The evidence of record first shows left knee instability during the June 11, 2008 VA examination. Prior to that time, the Veteran stated that his left knee did not lock up or give way. 4. The Veteran's migraine headaches are characterized by sharp pain in the frontal area occurring two or three times a week and lasting two or three hours, which results in lost time from work. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. The criteria for an evaluation in excess of 10 percent evaluation for left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.29, 4.30, 4.45, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2011). 3. Prior to June 11, 2008, the criteria for a separate compensable evaluation for left knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.29, 4.30, 4.45, 4.71a, Diagnostic Codes 5257 (2011). 4. As of June 11, 2008, the criteria for an evaluation in excess of 10 percent evaluation for instability of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.29, 4.30, 4.45, 4.71a, Diagnostic Codes 5257 (2011). 5. Throughout the rating period on appeal, the criteria for an evaluation of 30 percent, but no more, for migraine headaches have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.29, 4.30, 4.45, 4.124a, Diagnostic Code 8100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Regarding the service connection claim, he was sent a letter in August 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. That communication also explained the type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify with respect to that issue. The Veteran's left knee and migraine claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Hypertension Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). Certain disorders, such as cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309; 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-67793 (Nov. 7, 2002)). Under Diagnostic Code 7101, note 1, the term "hypertension" is defined as diastolic blood pressure that is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104. The Board notes that this definition excludes lesser levels of high blood pressure and therefore the two terms are not synonymous. In this case, the record includes one blood pressure reading that rises to the level indicated in note 1 to Diagnostic Code 7101. Specifically, in July 2005, the Veteran's blood pressure reading was 141/91. VA treatment records dated a few months later, in October 2005, show a prescription for Lisinopril, which the Board notes is a medication used to treat high blood pressure. Thus, within roughly eight months of his separation, the Veteran was medicated for high blood pressure. There are no blood pressure readings within the one year presumptive period that show a compensable level of hypertension. This early medical treatment, without a history of diastolic pressure predominantly 100 or more that required this medication for control may very well have prevented the Veteran's hypertension from rising to the 10 percent manifestation within one year of service that is required for presumptive service connected under 38 C.F.R. § 3.309(a). See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 4.104, Diagnostic Code 7101 (a 10 percent manifestation of hypertension is diastolic pressure predominantly at 100 or more, systolic pressure generally at 160 or more, or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control). Therefore presumptive service connection is not warranted here. Similarly, there is no record of a diagnosis of hypertension during service or any in-service blood pressure readings that would indicate hypertension. Direct service connection requires competent and credible evidence of an in-service occurrence or aggravation of a disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). At the time of his medical evaluation board in June 2004, the Veteran's blood pressure was 130/79, which does not meet the requirements of hypertension under 38 C.F.R. § 4.104. Likewise, the various blood pressure readings taken during service show a diastolic blood pressure consistently under 90mm, with an April 2004 reading of 87 being the highest recorded, and systolic blood pressure consistently below 160, with a May 2004 reading of 147 being the highest of record. Thus, hypertension was not shown during the Veteran's active duty service. Again, the Board acknowledges that in July 2005, prior to the prescription of this medication, the Veteran's diastolic pressure was above 90mm. However, this was an isolated reading, and no additional records contain findings indicative of hypertension under Diagnostic Code 7101. As the Veteran is taking Lisinopril, current hypertension is conceded from a clinical perspective but there is no showing of hypertension for VA purposes (i.e., as defined under Diagnostic Code 7101). In light of the absence of findings consistent with hypertension during service, and without evidence of a current hypertension disability for VA purposes following service, the claim must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Rating Left Knee Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2011); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2011); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2011); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2011). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2011); see also 38 C.F.R. § 4.45 (2011). In a November 2006 rating decision, the Veteran was granted service connection for left knee Osgood-Schlatter's disease, post operative (left knee disability), based on aggravation of a pre-existing disability. A 10 percent evaluation was assigned under Diagnostic Code 5260-5010, effective February 8, 2005. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 provides criteria for evaluating traumatic arthritis. 38 C.F.R. § 4.471a. Specifically, this diagnostic code allows compensation of traumatic arthritis established by x-ray findings to be rated either based on the limitation of motion of the affected joint or based on x-ray findings. Id. In order to warrant the next higher 20 percent evaluation under this diagnostic code, the Veteran's left knee disability must be characterized by arthritis established by x-ray evidence with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Id. Under Diagnostic Code 5260, which concerns limitation of flexion of the leg, a noncompensable (zero percent evaluation) is assigned for flexion limited to 60 degrees; a 10 percent evaluation is assigned for flexion limited to 45 degrees; a 20 percent evaluation is assigned for flexion limited to 30 degrees; and a 30 percent evaluation is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261, addressing limitation of extension of the leg, a noncompensable evaluation is assigned for extension limited to 5 degrees; a 10 percent evaluation is assigned for extension limited to 10 degrees; a 20 percent evaluation is assigned for extension limited to 15 degrees; a 30 percent evaluation is assigned for extension limited to 20 degrees; a 40 percent evaluation is assigned for extension limited to 30 degrees; and a 50 percent evaluation is assigned for extension limited to 45 degrees. If the criteria for a compensable rating under both Diagnostic Code 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). Under the rating schedule, normal range of motion of the knee for VA compensation purposes will be considered flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. In an August 2008 rating decision, the Veteran was assigned a separate 10 percent evaluation based on left knee instability, effective June 11, 2008. See VAOPGCPREC 23-97 (allowing for separate evaluations are available for separate symptoms, such as arthritis and instability of the knee); see also VAOPCGPREC 9-98 (August 14, 1998) (entitling a veteran receiving disability compensation under Diagnostic Code 5257 based on recurrent subluxation or lateral instability to a separate compensable evaluation under Diagnostic Code 5003 based on x-ray findings of arthritis if the arthritis results in at least noncompensable limitation of motion). This separate rating is deemed a component of the disability on appeal and will be considered accordingly in the analysis below. The Veteran's medical evaluation board examination noted that his left knee disability made it difficult for him to stand for long or to run and that when he returned to work after his pre-deployment surgery in September 2002, he had been place in a seated job to accommodate his disability. February 2005 VA treatment records note complaints of intermittent left knee pain. He was diagnosed with left knee internal derangement. X-rays taken in February 2005 were normal, showing well-preserved joint compartments and good mineralization, with no fracture, joint effusion, or significant degenerative joint disease. A March 2005 VA examination report reflects complaints of left knee pain that he treated with Motrin. The left knee was enlarged and the Veteran reported pain with kneeling. He also complained of weakness, stiffness, swelling, instability, giving way, locking, fatigability, and loss of endurance. He did not use crutches, a cane, brace, or other assistive devices. Objectively, he had range of motion from 0 to 94 degrees. There was no change in range of motion with repetition of movement. There was tenderness around the swollen area, located on the patellotibial tendon region, measuring approximately one inch wide, 3 inches long, and .75 inches thick. Pain was produced in that area with kneeling. There was no heat or redness. No subluxation was detected by the examiner. Occupationally, the Veteran was worried that his knee disability would cause him to be fired from his job as a mechanic. VA treatment records from August 2007 noted the Veteran's complaints of chronic left knee pain. He was treated with medication and was using a knee brace. No edema of any extremity was noted. Private records show an anterior collateral ligament (ACL) graft surgery in September 2007. The Veteran was discharged the same day with an ACL brace for range of motion. This record noted full range of flexion and extension and Lachman's test showed a stable ACL. In November 2007, the Veteran underwent a VA medical examination in conjunction with this claim. At that time, he complained of left knee pain and swelling. As a result, he avoided staying on his feet for any prolonged period, aside from his physical therapy. He reported an increase in pain after his therapy session. His knee did not lock up or give way. He wore a brace, but did not use a cane or crutches. He described no episodes of dislocation or subluxation and no inflammatory arthritis. The Veteran had stopped working in August 2007 in anticipation of his September 2007 surgery and had been told he could return to work in January 2008. On physical examination, range of motion of the left knee was from 0 to 120 degrees, and there was no significant difficulty in achieving this motion. He complained of minimal discomfort with manipulation of the knee. No abnormality was noted on varus or valgus stress. No drawer sign or McMurray's sign was elicited. The strength of the left knee was 4/5 when compared to the right knee. His gait was normal. There was no evidence of significant tenderness to palpation around the knee, evidence of abnormal weight bearing, and no evidence of any unusual shoe wear pattern. No significant changes were noted with repetitive motion. VA outpatient records from February 2008 show no edema, effusion, or joint line tenderness. There was full range of flexion and extension without limitation. Private treatment records from April 2008 note a history of left knee pain. A MRI of the knee was performed, which showed small knee effusion, postoperative changes of prior ACL reconstruction, and discontinuous ACL graft fibers that were highly suspicious for rupture of the ACL graft. VA outpatient records from May 2008 show no edema, effusion, or joint line tenderness. The Veteran had a scar from an old surgery. He had full range of flexion and extension without restriction. In June 2008 the Veteran underwent a VA examination in conjunction with this claim. At that time, the Veteran complained of constant daily pain. He reported difficulty going up steps and he had occasional locking and giving way. He wore a knee brace. There were no constitutional symptoms of arthritis. He had more than four incapacitating episodes of arthritis per year lasting for days. His ability to stand was limited to 15 to 30 minutes. His ability to walk was limited to 1 to 3 miles. His joint symptoms included pain, giving way, and weekly locking episodes, but not deformity, instability, stiffness, weakness, effusion, inflammation, episodes of dislocation or subluxation, or flare-ups. The Veteran reported that he had rheumatoid arthritis and it caused monthly pericarditis for five months with hospitalization and two days of steroid treatment. Upon physical examination, the Veteran had an antalgic gait, but there was no evidence of abnormal weight bearing. He had full range of motion, with pain at the end of the range and no additional limitation of motion on repetitive use. There was no ankylosis, no loss of a bone or part of a bone, and no inflammatory arthritis. There was evidence of a well-healed scar, bumps consistent with Osgood-Schlatter's disease, grinding, instability, and varus instability of the collateral ligament in neutral position. There was no crepitus, no mass behind the knee, no clicks or snaps, no cruciate ligament instability, no instability of the collateral ligament in 30 degrees flexion, no patellar abnormality, no meniscus abnormality, no tendon or bursa abnormality, and no other knee abnormality. The Veteran was diagnosed with left knee degenerative joint disease with instability and possible anterior cruciate ligament tear. No significant occupational effect was found due to this disability as he was noted to be employed full time in a position that did not require him to stand on his feet. The Veteran underwent outpatient ACL surgery in April 2009. There is no indication in that record that he required 30 days or more convalescence following that procedure. The range of motion findings detailed above do not on their face support a compensable (10 percent) evaluation for either flexion or extension of the left knee. Moreover, there is no showing of a noncompensable degree of disability as to both left knee flexion and left knee extension; thus a separate rating for each pursuant to VAOPGCPREC 9-2004 is not warranted. In reaching these conclusions, the Board has considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the Board acknowledges the Veteran's complaints of left knee pain, which in part formed the basis for the initial grant of 10 percent under Diagnostic Code 5010-5260. Despite the subjective complaints of pain, the objective evidence of record does not show any additional functional limitation due to this pain, much less the limitation of flexion to 30 degrees that would be necessary to warrant the next-higher evaluation of 20 percent or the limitation of extension to 10 degrees that would be necessary to warrant a compensable evaluation under Diagnostic Code 5261. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. As such, a higher evaluation based on limitation of motion is not available. Id. Additionally, the x-ray evidence does not show degenerative arthritis of the left knee. There is also no evidence of incapacitating exacerbations. Thus, the rating criteria for a 10 percent evaluation for degenerative arthritis have not been satisfied. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For these reasons, the preponderance of the evidence is against the assignment of a higher evaluation for the Veteran's left knee disability based on arthritis or limitation of motion. 38 C.F.R. § 4.7. The Board will now turn to the question of left knee instability. Instability is evaluated under Diagnostic Code 5257. In order to qualify for a separate compensable (10 percent) evaluation for instability, the Veteran's left knee disability must be characterized by slight subluxation or lateral instability. 38 C.F.R. § 4.71a. Moderate subluxation or lateral instability warrants a 20 percent evaluation. Id. The Board notes that the terms "slight," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As noted above, the Veteran is currently receiving a separate 10 percent evaluation for left knee instability as of the date of his June 2008 VA examination during which he reported occasional locking and giving way. Prior to that time, the preponderance of the evidence weighs against a finding of left knee instability. In so concluding, the Board acknowledges that the Veteran was wearing a knee brace upon treatment in August 2007 and at his November 2007 VA examination. It appears he has continued to use such a brace. However, he denied episodes of locking or giving way at the November 2007 examination and no drawer sign was elicited. Moreover, while he appears to have endorsed instability, locking, and giving away at an earlier examination in March 2005, the examiner expressly noted the absence of subluxation at that time. As such, the criteria for a separate compensable evaluation for instability are deemed not to have been met prior to June 11, 2008. See VAOPGCPREC 23-97. However, as reflected by the current staging, left knee instability was shown during the June 11, 2008, VA examination. Specifically, that examination found instability and varus instability of the collateral ligament in the neutral position. This is sufficient to warrant a separate 10 percent evaluation for left knee instability at that time. Given that this instability was not accompanied by episodes of dislocation or subluxation, cruciate ligament instability, or instability of the collateral ligament in the 30 degrees flexion, the Veteran's left knee instability most nearly approximates the criteria for a 10 percent evaluation due to slight instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. A higher evaluation based on moderate instability is not warranted. See 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. The Veteran has also raised the issue of temporary total disability evaluations surrounding his ACL surgeries in September 2007 and April 2009. The records for both of these surgeries note that these were outpatient procedures; therefore a temporary total disability evaluation based on hospitalization is not warranted. 38 C.F.R. § 4.29. In order to qualify for a total disability evaluation due to convalescence under 38 C.F.R. § 4.30, entitlement must be established by report at hospital discharge or outpatient release. Again, the records for these surgeries fails to show a prescribed convalescence period. With regard to the September 19, 2007, surgery, the Board notes the Veteran's statements at his November 2007 VA examination that he had stopped working in August 2007 in anticipation of his September 2007 surgery and had been told that he could not return to work until January 2008. As an initial matter, the Board notes that convalescence occurs after surgery and therefore is unavailable for the period before the surgical procedure. With regard to the period between the Veteran's surgery and January 2008, the Board notes that the September 2007 operative report makes no mention of a convalescence period. Instead, it reads, "Postoperatively, he will be covered with prophylactic antibiotic and anticoagulation treatment. He will be started on gait training with weight bearing as tolerated, range of movement and quadriceps and hamstring exercises." Thus, the need for a convalescence period is not shown in the discharge paperwork. The Veteran has not submitted additional private medical records pertaining to this time period. Moreover, when asked by his VA physician for information regarding his post-surgical medical treatment, the Veteran did not bring any and could not recall the names of any of his medication. See VA Outpatient Treatment Record February 2008. Thus, the medical evidence does not show a convalescence period following the September 2007 surgery. With regard to the April 3, 2009, surgery, the Board notes that the operative report from that procedure likewise makes no mention of a convalescence period. Instead, it reads, "Postoperatively, he will be started on gait training , toe touch weight bearing, to weight bearing as tolerated, and he will start gradual range of movement exercises." The Veteran has not submitted additional private medical records pertaining to this time period. Thus, the medical evidence does not show a convalescence period following the April 2009 surgery. For the above-stated reasons, compensation under 38 C.F.R. § 4.30 is not for application with respect to either the September 2007 or the April 2009 outpatient surgeries. In sum, the Board finds that, at no time during the pendency of this claim for an increased rating, has the Veteran's left knee disability warranted an evaluation in excess of 10 percent based on arthritis or limitation of motion. See Fenderson, 12 Vet. App. 119. Moreover , the evidence does not support a rating in excess of 10 percent rating for left knee instability as of June 11, 2008. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Rating Migraine Headaches In a November 2006 rating decision, the Veteran was granted service connection for migraine headaches, and assigned a 10 percent evaluation under Diagnostic Code 8100, effective February 8, 2005. In order to warrant the next higher evaluation of 30 percent, the Veteran's migraines must be characterized by prostrating attacks occurring on an average of once a month other the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. Id. The Veteran's medical evaluation board examination noted that he had previously left his job driving a garbage truck because the heat exacerbated his headache problem. In March 2005, the Veteran underwent a VA medical examination in conjunction with this claim. At that time, he stated that he had headaches for the past five years, occurring three times per week, each lasting about two hours. These headaches were located in the frontal area and were described as sharp and throbbing. They were aggravated by heat and certain chemical odors. His symptoms were somewhat relieved with medication. He reported leaving work early twice a week due to his headaches. He was able to drive if necessary during a headache. The Veteran stated that his symptoms had not changed in frequency or intensity. There was no aura or associated symptoms. Physical examination revealed right hand dominance, normal station and gait, and use of both hands. Cranial nerves were within normal limits. Tongue was midline without deviation. There was no asymmetry, involuntary movements, weakness, or atrophy of motor symptoms. Muscle tone was within normal limits. Deep tendon reflexes were symmetrical and normoactive. Pain and sensory tracts were intact. Coordination was intact based on finger-to-nose testing. The Veteran was diagnosed with migraine headaches. In November 2007, the Veteran underwent another VA medical examination in conjunction with this claim. At that time, he reported migraine headaches occurring two or three time a week. Chemical smells, bright lights, and heat precipitated headaches. He reported wearing sunglasses outside all the time to avoid headaches. The Veteran described his headaches as being concentrated in the left frontal area, directly above his left eye, but they may spread all over his head. He further described them as being sharp and lasting two to three hours despite medication. Very rarely he also saw some scotomata involving the left eye. He took medication to treat his headaches and, if possible, laying down in a quiet dark room once they start. He could not drive during the headaches. He worked as a garbage truck driver and stated that he had missed about 24 days of work over the previous six months due to headaches. He had no weakness, fatigue, or functional loss when he was not having headaches. While he could function during headaches, he was not very effective. Objectively, station and gait were normal, and the Veteran had no problems with his extremities. His cranial nerves II through XII were grossly intact, equal, and symmetrical. A CT scan was unrevealing. VA outpatient records note the Veteran's history of migraines. Based on the above, the Veteran's migraine headache symptoms most nearly approximate the criteria for an initial rating of 30 percent. Throughout the appeals period, he has described migraine headaches occurring two or three time a week and lasting two or three hours, which caused him lost time at work. While the March 2005 examination notes that he would leave work early twice a week due to this disability, the November 2007 examination notes 24 lost days of work over the previous six months. Both of these accounts show a frequency of at least once a month. Thus the criteria for a 30 percent evaluation are met. 38 C.F.R. § 4.124a, Diagnostic Code 8100. However, these symptoms do not rise to the level of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which is required for the next higher evaluation of 50 percent. Id. The Veteran reports frequent migraines, but the description of his symptoms shows that these migraines are neither completely prostrating nor prolonged. He has consistently stated that he can function, albeit ineffectively, during these migraines. While he stated at the time of the March 2005 examination that he could drive during a migraine, his more recent examinations shows that is no longer the case. He has not reported any additional associated symptoms. In sum, the preponderance of the evidence is in favor of the assignment of a 30 percent evaluation, but no more, for the Veteran's migraine headaches. See 38 C.F.R. § 4.7. At no time during the pendency of this claim for an increased rating, have the Veteran's migraine headaches warranted an evaluation in excess of 30 percent. See Fenderson, 12 Vet. App. 119. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 54-56. Extraschedular Considerations The Board must also determine whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. An evaluation in excess of those assigned is provided for certain manifestations of the service-connected disabilities, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER Service connection for hypertension is denied. Entitlement to an evaluation in excess of 10 percent for left knee Osgood-Schlatter's disease, post operative, based on limitation of motion is denied. Prior to June 11, 2008, a separate 10 percent rating is granted for left knee Osgood-Schlatter's disease, post operative, based on instability is denied. Entitlement to an evaluation in excess of 10 percent as of June 11, 2008, for left knee Osgood-Schlatter's disease, post operative, based on instability is denied. Entitlement to an initial evaluation of 30 percent for service connected migraine headaches is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. REMAND Service Connection PTSD Service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). In a September 2006 record, the Veteran's private physician diagnosed him with PTSD in accordance with DSM-IV, thus conforming to the requirements of 38 C.F.R. § 4.125(a). Despite what appears to be a typographical error wherein this doctor relates the Veteran's PTSD to "a traumatic event where he felt that his wife was threatened," the traumatic events described within the report note the Veteran feared that his life was in danger during his service. There is no other indication in that record that the Veteran's wife was ever threatened. Specifically, the Veteran described mortar attacks almost every night. He also described the additional stressors of witnessing others receive treatment at the hospital for severe injuries. Additionally, his good friend was injured. It is noted that those additional stressors did not involve any threat to the Veteran's life. In his April 2007 statement, the Veteran further specified that the mortar attacks occurred while he was at Camp Anaconda for a week receiving treatment for his other medical conditions. In February 2007, the RO issued a formal finding on a lack of information required to verify the Veteran's PTSD stressors. As noted above, the Veteran has since submitted additional evidence related to his claimed stressors. Additionally, the evidentiary standard outlined in 38 C.F.R. § 3.304(f) for establishing in-service stressors in claims for PTSD was recently relaxed, adding to the types of claims VA will accept through credible lay testimony alone. These regulations provide that if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The Veteran's service personnel records show that he was deployed to Iraq in late February 2004. Service treatment records show he was treated in Iraq at Camp Caldwell in March 2004 and April 2004. Later in April 2004 he was treated at Camp Anaconda. He was evacuated from Iraq to Germany on April 10, 2004, after being diagnosed with severe migraines. He was then evacuated to Walter Reed in Washington, DC, prior to returning to his mobilization station in North Carolina on April 17, 2004. Thus, the record shows that he was in Iraq within a year of the invasion. The Board acknowledges that the September 2006 private psychiatrist had not contracted with VA. As such, this psychiatrist is unable to confirm that the claimed stressor is adequate to support a diagnosis of PTSD under 38 C.F.R. § 3.304(f)(3). Accordingly, a VA medical examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination for the purpose of determining the nature and etiology of any acquired psychiatric disability found to be present. The examiner should address whether the Veteran currently has posttraumatic stress disorder (PTSD) within the definition of DSM-IV. The examiner should then state whether it is at least as likely as not that PSTD or any other acquired psychiatric disability is causally related to the Veteran's military service, including the identified fear for his life during his time in Iraq. The claims file should be reviewed in conjunction with this examination, and all opinions offered should be accompanied by a clear rationale. 2. After the above development is completed, adjudicate the claim of entitlement to an increased initial rating for a left knee disability. If the benefit sought is denied, provided the Veteran and his representative a supplemental statement of the case, with an appropriate period for response, before the case is returned to the Board The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2010). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs