Citation Nr: 1801365 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-13 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected migraine headaches. 2. Entitlement to service connection for a right wrist disorder. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to an initial compensable disability rating for service-connected right knee patellofemoral syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 2003 to May 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The appeal is now under the jurisdiction of the Nashville, Tennessee RO. In January 2016, the Veteran presented testimony before the undersigned during a video conference hearing at the above RO. A transcript of the hearing has been associated with the Veteran's electronic record. In April 2016, the Board remanded the matters on appeal to the RO for additional substantive development. The requested development has been accomplished and the matters have returned to the Board for further appellate consideration. By a November 2016 rating action, the RO granted an initial 30 percent disability rating to the service-connected migraine headaches, effective May 17, 2011. However, when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In view of the RO's action, the Board has recharacterized the Veteran's initial rating claim for migraine headaches to accurately reflect the RO's action, as indicated on the title page. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains VA treatment records and documents that are either duplicative of the evidence in VBMS or not relevant to the issues on appeal. The issue of entitlement to an initial compensable disability rating for the service-connected right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to July 16, 2016, the Veteran's migraine headaches did not more nearly approximate a disability manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. On and after July 16, 2016, the Veteran's migraine headaches have more nearly approximated a disability manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. A right wrist disability and neck disability did not have onset in service, did not manifest within one year of service, and are not otherwise related to active service. CONCLUSIONS OF LAW 1. Prior to July 16, 2016, the criteria for an initial disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). 2. On and after July 16, 2016, the criteria for an initial disability rating of 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. The criteria for service connection for a right wrist disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 4. The criteria for service connection for a neck disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned at a video conference hearing conducted in January 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with its April 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Initial Rating Claim-Migraine Headaches The Veteran seeks entitlement to an initial disability rating in excess of 30 percent for migraine headaches. After a discussion of the laws and regulations governing initial and increased rating claims and those specific to rating migraine headaches, the Board will address the merits of the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected right hand laceration. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The RO has assigned an initial 30 percent rating to the service-connected migraine headaches under Diagnostic Code 8100. 38 C.F.R. § 4.124(a); Diagnostic Code 8100. Under Diagnostic Code 8100 for migraines, the appropriate rating is assigned based on the duration and prostrating effect of the migraines. 38 C.F.R. § 4.124a (2017). Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines (or headaches in this case, which is rated by analogy) with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent rating is warranted for migraines (or headaches) with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do no define prostrating. Prostration is defined as extreme exhaustion or powerlessness. Dorland's Illustrated Medical Dictionary at 1531 (32nd ed. 2012). Productive of can either have the meaning of producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant the 50 percent rating. Pierce, 18 Vet. App. at 445-46. Economic inadaptability also does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Pierce, 18 Vet. App. at 446; 38 C.F.R. § 4.16 (2017). The Board notes, however, that migraines must be, at a minimum, capable of producing severe economic inadaptability. At a November 2011 VA General Medical examination, the Veteran reported having had a migraine headache every two months and that it would last two days and was associated with light sensitivity in which she would sometimes see dots. She denied having any nausea. The Veteran reported that when she had a migraine, her temples would throb and she would experience excruciating pains that caused her to retreat to a dark room. The examiner noted that 50 percent of the Veteran's migraines incapacitated her about three times a year for two days. The Veteran related that the duration of her migraines would decrease with medication, which knocked her out for a day. After that period, she would take the medication after work. A July 2016 VA examination was conducted. The Veteran reported having migraine headaches that were characterized by constant, pulsating and throbbing head pain and were associated with sensitivity to light and sound that occurred on both sides of her head and less than once a day. She reported migraines 5 times per week. The VA examiner determined that the Veteran had characteristic prostrating attacks of migraine pain that occurred once a month but were not productive of severe economic inadaptability. The VA examiner determined that the Veteran experienced decreased concentration and productivity during these headache episodes, which, in turn, caused an increase in absenteeism at work due to frequent headaches. VA treatment records during this period reflect intermittent complaints of headaches. The Board finds that as of the July 2016 VA examination, the Veteran's headaches were capable of producing severe economic inadaptability. Prior to that time, the 2011 VA examination reported noted that the Veteran reported a migraine every two months that lasted two days. Although this could cause some economic inadaptability, the Board finds that it does not rise to the level of severe inadaptability. As of the July 2016 VA examination, however, the Veteran reported migraine headaches 5 times per week that were characterized by constant, pulsating and throbbing head pain and were associated with sensitivity to light and sound that occurred on both sides of her head. Moreover, the examiner, despite finding there was no severe inadaptability, found that the headaches caused the Veteran to experience decreased concentration and productivity during these headache episodes, which, in turn, caused an increase in absenteeism at work due to frequent headaches. Resolving all doubt in favor of the Veteran, the Board finds that her migraine headaches more nearly approximate the criteria needed for the maximum 50 percent rating under Diagnostic Code 8100. As such, an initial 50 percent rating is granted for her migraine headaches throughout the appeal period. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. Service Connection Claims- Right Wrist and Neck Disorders Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 8 C.F.R. § 3.303 (d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the Board hearing, the Veteran contends that she currently has right wrist and neck disabilities that are result of a fall aboard the USS ENTERPRISE in 2004. She reported both wrist and neck symptoms since that time. Regarding Shedden element number one (1), evidence of a current disability, July 2016 Wrist and Neck Disability Benefits Questionnaires (DBQs) contain diagnoses of chronic right wrist sprain and chronic neck strain, respectively. Thus, as there is evidence of current right wrist and neck disabilities, Shedden element number one (1) has been met. Concerning Shedden element number two (2), evidence of in-service disease or injury, the claims fail on this element. The Veteran's service treatment records (STRs) disclose that she had received treatment in March 2004 after she fell on her left wrist on the USS Enterprise. An assessment of left wrist strain with snuff-box tenderness, rule out fracture was entered. When seen for a follow-up visit in April 2004, the examining clinician noted that the Veteran's left wrist pain had resolved. A January 2011 Report of Medical History contains the Veteran's notation that she had twisted her "wrist" in 2004 and that it continued to bother her with excessive use. These entries, as well as the remainder of the STRs, are devoid of any subjective complaints or clinical findings regarding the right wrist and/or neck. The Veteran, however, has asserted that she suffered an in-service fall that injured both the right wrist and the neck in 2004, during service. The Board finds that these statements are competent. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board finds the assertions, however, not significantly credible based on the Veteran's demeanor at the hearing and because the STRs are silent for any right wrist or neck complaints, to include at the service discharge examination. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, this element is not met as the evidence does not support an in-service right wrist and neck injury or event. Concerning Shedden element number three (3), nexus to military service, the claim also fails this element. First, the disorders did not manifest within one year of discharge. At a 2011 VA examination, the examiner found only history of wrist sprain, with the only current diagnosis of wrist pain and neck pain, with no other current diagnoses. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). Second, there are two VA opinions that address the nexus element and they are against the claim. In a November 2011 VA examination, the examiner noted a history of a wrist sprain, but that pain was the only current diagnosis. The examiner also found that neck pain was the only diagnosis of the neck. In July and September 2016 opinions, a VA examiner opined that the Veteran's right wrist and neck disorders were less likely than not incurred in or caused by claimed inservice injury. Regarding the right wrist, the examiner reasoned that the Veteran's STRs were wholly devoid of any injury or clinical findings regarding the right wrist. As correctly noted by the examiner, the Veteran's STRs confirm that she had received treatment for her left wrist in March 2004, and that there were no further findings regarding either wrist until a January 2011 Report of Medical History, when the Veteran reported having twisted her "wrist" in 2004. The examiner noted that the VA examiner's notation during a November 2011 VA examination of a "h/o right wrist sprain" with a diagnosis of 2004 was erroneous documentation as the STRS clearly denote an injury to the left wrist. Regarding the neck, the examiner reiterated her conclusion that the Veteran's STRS, to include a January 2011 separation questionnaire, were silent for any neck complaints. In fact, according to the examiner, the first documentation of neck pain was in a November 2011 VA examination, which was over 10 months after service discharge. The examiner reasoned that any acute injury to the Veteran's neck that would have presented as a chronic neck condition would have been significant enough to have been reported at some time during service, notably coincident to the injury to the left wrist. According to the examiner, if the Veteran had injured her neck coincident to her left wrist injury, as she alleged, it would be reasonable to assume that she would have reported neck pain or an injury at that time. The Board accords these opinions probative value as they are based upon a review of the relevant evidence, to include the Veteran's STRs, and the examiner provided supporting explanation. The evidentiary weight of these reports and opinions preponderate against the Veteran's lay assertions regarding etiology that are in support of the claim. 38 U.S.C 5107 (b); 38 C.F.R. § 3.102. Therefore, direct service connection is not warranted. ORDER On and after July 16, 2016, an initial 50 percent rating for migraine headaches is granted. Service connection for a right wrist disorder is denied. Service connection for a neck disorder is denied. REMAND The Board finds that the claim for an initial compensable disability rating for the service connected right knee patellofemoral syndrome must be remanded for an adequate examination. A VA joints examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). In the Veteran's case, his right knee disability is rated under Diagnostic Code 5260, the Diagnostic Code that is used to evaluate limitation of leg flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). The most recent VA examination conducted in July 2016 does not include the relevant findings. Accordingly, remand is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the electronic record all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the electronic record. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire, and note if there is evidence of pain on motion, weakness, excess fatigability, and/or incoordination, the examiner should indicate the degree of range of motion at which such begins, as well as whether such results in any loss of range of motion. The examiner must record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint (i.e., left knee). 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. The examiner must comment on the functional limitations caused by flare-ups and repetitive use of the right knee. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. 4. Notify the Veteran that it is her responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for an initial compensable disability rating for a right knee disability must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 matter 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs