Citation Nr: 1643765 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 11-02 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for migraine headache disability. 2. Entitlement to an initial evaluation in excess of 10 percent for a left hip strain disability. 3. Entitlement to an initial evaluation in excess of 10 percent for right knee patellofemoral syndrome (right knee disability). 4. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative joint disease (left knee disability). 5. Entitlement to an initial evaluation in excess of 10 percent prior to December 9, 2009, and thereafter, in excess of 20 percent for cervical spine osteodegenerative disease (neck disability). 6. Entitlement to an initial evaluation in excess of 20 percent for right upper extremity radiculopathy disability. REPRESENTATION Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1981 to July 2008. These matters come before the Board of Veterans' Appeals (Board) from various rating decisions by the Department of Veterans Affairs, Regional Office, located in Columbia, South Carolina (RO). In a November 2008 rating decision, the RO granted the Veteran's claim for migraine headaches and assigned an initial noncompensable rating, effective from August 1, 2008. His claims for service connection for a left hip strain, right knee patellofemoral syndrome, left knee degenerative joint disease and cervical spine osteodegenerative disease were also granted and initial 10 percent ratings were assigned for each disability, effective from August 1, 2008. In a December 2010 rating decision, the RO awarded service connection for right upper extremity radiculopathy and assigned an initial 20 percent rating, effective March 3, 2010. Each issue has been appealed and certified to the Board. Also, in the December 2010 rating decision, the RO assigned a higher, 30 percent rating for the migraines from August 1, 2008, and assigned a higher, a 20 percent rating for cervical spine osteodegenerative disease, effective December 9, 2009 (the date of a VA examination). As higher ratings are available, the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain viable on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2014, the Board remanded the issues on appeal to the RO (via the Appeals Management Center (AMC)) for additional development, to include providing the Veteran with new VA examinations to evaluate the severity of his disabilities. Thereafter, in a June 2015 rating decision, the AMC increased the assigned evaluation for migraine headaches to 50 percent disabling. Although this is the maximum benefit under Diagnostic Code 8100, 38 C.F.R. § 4.124a, it does not constitute a full grant of the benefits sought, the Veteran's claim for higher evaluation remains in appellate status. See AB, supra. The issues of entitlement to increased ratings for bilateral knee, left hip, cervical spine, and right upper extremity radiculopathy disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The 50 percent rating currently in effect is the maximum schedular rating for service-connected migraine headaches. 2. The evidence of record does not show that the Veteran's service-connected migraine headache disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for the Veteran's migraine headache disability have not been met. 38 U.S.C.A.§1155 (West 2014); 38 C.F.R. §§ 38 C.F.R. § 3.321 (b), 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Following the Veteran's appeal of the initial assigned evaluation for migraine headache disability, the RO provided notice to the Veteran in a November 2009 letter that discussed VA assigns rating evaluations and effective dates. VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation. The Board also concludes VA's duty to assist has been satisfied. The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of private, service, and Army Hospital treatment records. In addition, the record contains the reports of a July 2008 VA general medical examination, a January 2010 VA neurologic examination, and a December 2014 VA (QTC) migraine headache examination. In each examination report, the VA examiner noted a review the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the VA examination reports are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board has considered the Veteran's assertion that his disability has worsened and he could be afforded a new VA examination. See July 2016 informal hearing presentation. However, the Veteran has only provided a general assertion of worsening, and he has not described how his disability has in fact increased in severity since the December 2014 VA examination. Moreover, there is no medical evidence indicating that the Veteran's disability has worsened. As there is no evidence (lay or medical) of any material worsening of the Veteran's migraine headache disability beyond his general assertion since the 2014 VA examination, the Board finds that a new VA examination is not necessary. A new VA examination is not necessary at this time for migraine headache disability. See 38 C.F.R. § 3.327 (a) (2015). The claim was remanded in September 2014 for additional evidentiary development including obtaining updated treatment records and scheduling the Veteran for a new VA examination. The Veteran failed to respond to the October 2014 notice letter seeking his assistance in identifying and obtaining any outstanding records of pertinent treatment. The Veteran was provided with the requested VA examination in December 2014. The claim was readjudicated in a June 2015 supplemental statement of the case. Accordingly, there has been substantial compliance with the Board's 2014 remand instructions, and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that no additional action to further develop the record on the claim is warranted. 2. Increased Rating The Veteran seeks entitlement to a higher evaluation for his service-connected migraine headache disability. His disability is current assigned a 50 percent rating, effective from August 1, 2008 (date of the original claim for service connection). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). Where an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his headache disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Veteran's service-connected migraine headaches disability is rated as 50 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (migraine headaches). This is the maximum schedular rating available for migraine headaches. A 50 percent rating is warranted under Diagnostic Code 8100 for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Accordingly, the Veteran is in receipt of a 50 percent disability rating which is the maximum rating under Diagnostic Code 8100 for his service-connected migraine headache disability. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. The potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the Veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds no other applicable rating criteria that would provide a higher rating or an additional rating. Accordingly, a 50 percent rating is clearly the maximum rating assignable for the Veteran's migraine headache disability. An increased schedular rating is therefore not available and the claim is denied. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected migraine headache disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating 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 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 period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21 (b) (1) (2015). 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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. The Veteran has not identified any factors which may be considered to be exceptional or unusual that renders the schedular evaluation inadequate. There is no evidence of record of an exceptional or unusual clinical picture not already contemplated by the rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100. In the December 2014 VA (QTC) migraine headache examination report, the VA examiner noted that the Veteran reported that his migraines were productive of constant head pain, pain localized to one side of his head as well as both sides of his head, nausea, vomiting, and sensitivity to light and sound and an attack can last up to two days or more. He experienced prostrating attacks that occurred more frequently than once per month, and they were noted to impact his ability to work. The Veteran reported that when he experienced a severe migraine headache that would not resolve with medication and he would need to leave work. These findings are consistent with his assigned 50 percent rating, which contemplates migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The record shows that the Veteran has been able to retain his current employment throughout the entire pendency of the appeal. He has not reported that his disability results in marked interference of his employment. Accordingly, as the evidence does not demonstrate that the Veteran's headaches are productive of an exceptional disability picture that is not contemplated by the schedular rating criteria, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321 (b) (1) is not warranted. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Here, the Veteran is also service-connected for other orthopedic disabilities as well as psychiatric disorder and neurologic disorders. In this case, he has not alleged additional symptoms or manifestations of his disabilities, either individually or in combination, that have not been taken into account by his assigned disability ratings. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. See Thun, 22 Vet. App at 115-16. The Board also notes that this case does not raise a claim of entitlement to a TDIU. At no point during the period under appeal has the Veteran asserted, or does the evidence of record show, that the Veteran is unable to obtain or maintain substantially gainful employment. He has asserted that his disability affects his functional capacity, but he has not asserted that he is unemployable because of his migraine headache disability. Notably, evidence of record shows that the Veteran was employed throughout the pendency of the appeal. See the reports of July 2008, January 2010, and December 2014 VA examinations. As such, this case does not raise a claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). ORDER Entitlement to an evaluation in excess of 50 percent for migraine headaches is denied. REMAND The Veteran seeks higher evaluations for his service-connected right and left knee, left hip, cervical spine, and right upper extremity radiculopathy disabilities. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claims. Initially, the Board notes that pursuant to the September 2014 remand directives, the Veteran was provided with December 2015 and June 2015 VA examinations to evaluate the severity of his disabilities. Although these examinations are fairly recent, the Veteran has asserted that his disabilities have worsened since he was last evaluated by VA. See July 2016 informal hearing presentation. He stated that he experiences increased painful motion, weakness, and limitation of motion in his bilateral knees, left hip, cervical spine and right upper extremity. He further asserted that he should be afforded new VA examinations to evaluate the severity of his disabilities. See Id. The Board regrets further delay in adjudication of the Veteran's claims; however, given the Veteran's lay statement of worsening, new VA examinations to evaluate the severity of his bilateral knees, left hip, cervical spine and right upper extremity disabilities are needed. See Baker v. Derwinski, 2 Vet.App. 315 (1992); Green v. Derwinski, 1 Vet.App. 121 (1991). As such, the claims are remanded to provide the Veteran with new VA examinations in conjunction with his claims. Additionally, the Board notes that since the December 2014 VA knee examinations, the Court of Appeals of Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the December 2014 VA knee examination fails to demonstrate range of motion testing for both knees in weight-bearing and nonweight-bearing situations. As such, new VA knee examination is needed to address the severity of the Veteran's bilateral knee disability in weight-bearing and nonweight-bearing situations to ensure compliance with 38 C.F.R. § 4.59. As the matters on appeal are already being remanded for new VA examinations, attempts should be made to update the claims folder with the Veteran's pertinent treatment claims from TRICARE, Moncrief Army Community Hospital, as well as any other identified pertinent treatments records. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, obtain any outstanding TRICARE records from Moncrief Army Community Hospital dated from May 2010 to the present and any other pertinent treatment identified by the Veteran. All reasonable attempts should be made to obtain any identified records. 2. Schedule the Veteran for a VA orthopedic examination to determine the current severity of the service-connected left knee, right knee, cervical spine and left hip disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. With respect to the Veteran's bilateral knee, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Schedule the Veteran for a VA neurologic examination to determine the current severity of the service-connected right upper extremity radiculopathy. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. The examiner should identify the nerve or nerves affected, and should comment on the functional impairment that would be expected from the symptoms shown/pathology found. 4. Thereafter, adjudicate the increased rating claims on appeal. If any of the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs