Citation Nr: 18144440 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-33 495 DATE: October 24, 2018 ORDER The claim of entitlement to service connection for a right knee disorder is denied. The claim of entitlement to service connection for a left knee disorder is denied. The claim of entitlement to an initial compensable rating for migraine headaches is denied. The claim of entitlement to an initial compensable rating for residuals of a right wrist (minor) disorder, status post residuals of removal of ganglion cyst, is denied. The claim of entitlement to an initial compensable rating for right upper extremity (RUE) scar, status post removal of ganglion cyst, is denied. FINDINGS OF FACT 1. The Veteran entered service with a preexisting right knee condition which did not undergo an increase in disability in service. 2. A chronic left knee disability is not clearly shown at any time. 3. For the entire appeal period, the Veteran’s service-connected migraine headaches have been manifested by complaints of pain, but they have not been manifested by characteristic prostrating attacks averaging one in 2 months over the last several months. 4. For the entire appeal period, the Veteran’s service-connected right wrist disorder has not been productive of palmar flexion limited in line with the forearm, dorsiflexion less than 15 degrees, ankylosis of the wrist, or any other significant symptoms or functional impairment. 5. For the entire appeal period, the Veteran’s service-connected right wrist scar has not been painful, unstable, or with an area of at least 39 sq. cm, or that there is any additional limitation of function or motion associated with the scar. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.3159, 3.306 (2018). [Citations]. 2. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria for an initial compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2018). 4. The criteria for an initial compensable rating for a right wrist disorder, status post removal of ganglion cyst, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, DC 5215 (2018). 5. The criteria for an initial compensable rating for a right wrist scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118 DCs 7801-7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2010 to June 2014. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office. Following the issuance of the supplemental statement of the case (SSOC) dated in August 2016, the Veteran submitted additional evidence (pre-service private record dated in 2002 showing right knee injury when she was 14 years old). As the Veteran’s substantive appeal in this case was received after February 2, 2013, a waiver of initial RO consideration of this additional evidence is not required. See 38 C.F.R. §§ 20.800, 20.1304 (2018); see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial agency of original jurisdiction (AOJ) review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). Service Connection – In General Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2018). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). The Board has reviewed all of the evidence in the Veteran’s claim file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran has asserted that she has bilateral knee disabilities. When filing her claim in April 2014, she alleged inservice injury to both knees. The claim of entitlement to service connection for a right knee disorder Review of the service treatment records (STRs) reflects that upon examination in February 2009, The Veteran’s medical history included report that she had undergone right knee ligament surgery in 2002. There is no entrance examination report of record. The STRs are negative for report of, treatment for, or diagnosis of additional right knee problems. Post service, the Veteran was examined by VA in May 2014 regarding the right knee. The claims file was reviewed and an in-person examination was conducted. The diagnosis was status post meniscus and femur repair of the right knee. At the time of this examination, her complaints included intermittent popping and pain. Following range of motion (ROM) testing, it was noted that there was some functional loss associated her right knee condition. X-rays did not show arthritis in the knee. In an addendum opinion by a VA examiner dated in February 2015, it was opined that the Veteran’s preexisting right knee disorder was not aggravated beyond its natural progression during service. For rationale, she noted that current examination showed no aggravation of the preexisting condition. Clearly, in this case, the Veteran entered service with a preexisting right knee disorder. Thus, she may only bring a claim for service-connected aggravation of that disorder. She has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Unfortunately, such aggravation is not demonstrated here. In this regard, although alleged that she injured her knee during service, (see the April 2014 claim), no such inservice right knee problems are actually demonstrated. While the Veteran’s preservice history of anterior cruciate ligament surgery was mentioned on many occasions, no additional right knee problems were reported or diagnosed. Moreover, as indicated above, when examined by VA post service, it was opined that current right knee strain did not represent aggravation of the preexisting right knee condition. There is no contrary medical opinion of record. Thus, the Board finds that the Veteran’s preexisting right knee disorder underwent no increased in disability in service so the presumption of aggravation does not attach. In so finding the above, the Board considered the Veteran’s lay statements in evaluating her claim. In this regard, she is competent to report symptoms that require personal knowledge as they come to her through her senses as well as any diagnosis reported to her by a medical professional. See Layno v. Brown, 6 Vet. App. 465, 47 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran, as a lay person, is not competent to provide an opinion as to the etiology of her right knee disorder, including whether any pre-existing right knee disability underwent a chronic worsening in service as opposed to a temporary or intermittent flare-up. While it is in error to categorically reject layperson evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau, supra. In this regard, the nexus issue presented in this case is medically complex because it requires expert knowledge of the body’s mechanics and its impact on the knee, and an internal process affecting a joint. The Veteran has not shown that she is qualified through education, training, or experience to offer an etiological opinion on this complex medical question. Therefore, the Board accords her statements regarding the nature and etiology of her right knee disorder no probative weight compared to the VA medical opinion as summarized above. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. The claim of entitlement to service connection for a left knee disorder It is also claimed that the Veteran has a left knee disorder that is of service origin. The STRs are negative for report of, treatment for, or diagnosis of a left knee condition. Post service records include the VA May 2014 examination already mentioned. At that time, the Veteran showed some limitation of ROM in the left knee although no chronic left knee disorder was diagnosed. Additional opinion was sought to determine if she had a chronic left knee disorder. In a March 2015 report, a VA physician who reviewed the evidence opined that no current left knee disorder was shown to be present. The 130 degrees of left knee flexion shown upon examination was accomplished without pain. This, as likely as not, represented the Veteran’s baseline and was not representative of a disease condition or process. Further, there was no pain with motion in the examination. The examination was otherwise functionally normal. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110 (2012); and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C. § 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. As there is no competent medical evidence of a current left knee disorder or pain with functional impairment, the claim must be denied. See also Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Circ. 2018). Increased Ratings – In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2018). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2018). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2018). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The claim for an initial compensable rating for migraine headaches. The Veteran’s migraine headaches are rated as noncompensable under 38 C.F.R. § 4.124a, DC 8100. An initial noncompensable evaluation has been assigned, effective from June 14, 2014. Under the Rating Schedule, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Upon VA examination in May 2014, the Veteran reported intermittent, moderate, and throbbing headaches that start in the front of her head and last for approximately 1-2 days. Associated symptoms consisted of light and noise sensitivity and movement. The condition did not prevent functionality of employment. She took Maxalt as needed. She did not have prostrating attacks. In a July 2016 statement, the Veteran reported that she continued to experience migraines. The Veteran contends that a compensable rating is warranted for her service-connected migraine headaches. However, the evidence of record does not show that her headaches manifested any characteristic prostrating attacks of headache pain at any time during the appeal period. In this regard, although the evidence is clear that the Veteran experiences frontal headaches that are no doubt painful, the evidence, including the Veteran’s own statements, weighs against finding that she experiences any prostrating attacks of headache pain. Specifically, the VA examiner noted that she did not have characteristic prostrating attacks of migraine pain or non-migraine prostrating attacks of headache pain, and that her headaches did not prevent her from employment. See 38 C.F.R. §§ 4.10, 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, there is no schedular basis for a higher rating for this disability, and the claim for entitlement to an initial compensable evaluation for migraine headaches must be denied. The claim of entitlement to an initial compensable rating for residuals of removal of right wrist ganglion cyst. A noncompensable rating is in effect for the service-connected right wrist disorder pursuant to 38 C.F.R. § 4.118, DC 5215, assigned effective from June 14, 2014. Under DC 5215, limitation of motion of the wrist, a 10 percent rating is warranted for the major/minor extremity (the Veteran is left-handed) if palmar flexion is limited in line with the forearm or if dorsiflexion is less than 15 degrees. This is the maximum schedular rating for limitation of wrist motion available under this DC. 38 C.F.R. § 4.71a, DC 5215. A higher rating under DC 5214 requires ankylosis. When the right wrist was examined by VA in May 2014, palmar flexion was to 70 degrees without pain and dorsiflexion was to 50 degrees, also without pain. There was no ankylosis. The Veteran reported in July 2016 that she continued to experience right wrist pain. For the period of the appeal, the Veteran’s service-connected right wrist disability is evaluated as 0 percent disabling. Based on the foregoing evidence, the Board finds that a higher evaluation is not warranted at any point during the appeal period. Besides the Veteran’s complaints of pain, the evidence does not support any objective symptomology for the right wrist. The degree of limitation of wrist ROM is slight and does not meet the criteria for a compensable rating. Moreover, no ankylosis of the wrist is demonstrated. There was no additional functional loss, to include when considering reports of pain. See 38 C.F.R. §§ 4.10, 4.40, 4.45 (2015); DeLuca, supra. The claim of entitlement to an initial compensable rating for RUE scar of the right wrist, post removal of ganglion cyst. A noncompensable rating is in effect for the service-connected right wrist scar as a result of ganglion cyst removal pursuant to 38 C.F.R. § 4.118, DCs 7801-7805, assigned effective from June 14, 2014. DC 7805 directs the rater to DCs 7800 through 7804. The Board reflects that the residual scar of the right wrist is not of the head, neck and face; therefore, DC 7800 is not applicable in this case. Under DC 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas of at least 6 square (sq.) inches (39 square cm.), but less 12 sq. inches (77 sq. cm.). A 20 percent disability evaluation is warranted for the scar when it involves an area or areas of at least 12 sq. inches (77 sq. cm.), but is less than 72 sq. inches (465 sq. cm.). A 30 percent disability evaluation is warranted when it involves an area or areas at least 72 sq. inches (465 sq. cm.), but less than 144 sq. inches (929 sq. cm.). A 40 percent evaluation is warranted when it involves an area or areas is at least 144 sq. inches (929 sq. cm.), or greater. See 38 C.F.R. § 4.118, DC 7801 (2018). Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. DC 7802 provides a 10 percent evaluation for a superficial and nonlinear scar not of the head, face and neck that has an area of 144 sq. inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7801 (2018). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Finally, under DC 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and, a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804 (2018). Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Id., Note (2). The STRs reflect that the Veteran’s right ganglion cyst was 2 cm. in size. The Veteran’s right wrist scar was examined by VA in May 2014. It was noted that the right wrist scar was not painful or unstable and did not measure greater than 39 square cm. In a July 2016 statement, the Veteran stated that her right wrist scar caused her pain. In this case, manifestations of the right wrist ganglion cyst scar do not meet any of the criteria for a compensable rating. The Board does not find her complaints that the right wrist scar is painful corroborated by any medical evidence of record. Medical records instead reflect that the scar is not painful or unstable and small in size as reflected above. The Board finds the VA physician’s report in 2014 with the opinion as summarized above, is the evidence most probative to current right wrist manifestations. That report clearly reflected that the wrist scar was asymptomatic and insignificant. Accordingly, the Board cannot find that a compensable evaluation based on the above noted criteria is warranted in this case. The Veteran’s claim for an increased initial evaluation for her residual ganglion cyst scar must therefore be denied at this time based on the evidence of record. See 38 C.F.R. §§ 4.7, 4.118, DC 7801-7805. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith