Citation Nr: 18146633 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-15 699A DATE: October 31, 2018 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a bilateral hip disorder is denied. Entitlement to a disability rating in excess of 10 percent for the service-connected tinnitus is denied. Entitlement to a disability rating of 30 percent, but not higher, for the service-connected headaches is granted. Entitlement to a disability rating in excess of 0 percent for the service-connected sinusitis is denied. Entitlement to a disability rating in excess of 0 percent for the service-connected bilateral hearing loss is denied. Entitlement to a disability rating of 10 percent, but not higher, for the service-connected bilateral knee scars is granted. Entitlement to a disability rating in excess of 10 percent for the service-connected left knee disorder is denied. Entitlement to a disability rating in excess of 10 percent for the service-connected right knee disorder is denied. Entitlement to an effective date earlier than March 26, 2014, for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than March 26, 2014, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an effective date earlier than March 26, 2014, for the grant of service connection for headaches is denied. Entitlement to an effective date earlier than March 26, 2014, for the grant of service connection for bilateral knee scars is denied. FINDINGS OF FACT 1. Sleep apnea is not related to service. 2. An acquired psychiatric disorder is not related to service. 3. A low back disorder is not related to service. 4. A bilateral hip disorder is not related to service. 5. There is no dispute of fact regarding the symptomatology and manifestations of the Veteran’s tinnitus. 6. The service-connected headaches have been manifested by characteristic prostrating attacks of migraine headache pain occurring on an average once a month over last several months. 7. The service-connected sinusitis has been essentially asymptomatic. 8. The service-connected bilateral hearing loss has been manifested by level II in the right ear and level I in the left ear. 9. The service-connected bilateral knee scars have been manifested by a single painful scar; the other scars are asymptomatic. 10. The service-connected left knee disability has been manifested by meniscal removal with resulting painful motion. 11. The service-connected right knee disability has been manifested by meniscal removal with resulting painful motion. 12. The earliest date of a pending claim of entitlement to service connection for tinnitus is March 26, 2014. 13. The earliest date of a pending claim of entitlement to service connection for bilateral hearing loss is March 26, 2014. 14. The earliest date of a pending claim of entitlement to service connection for headaches is March 26, 2014. 15. The earliest date of a pending claim of entitlement to service connection for bilateral knee scars is March 26, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 4.125 (2017). 3. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for a bilateral hip disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 5. The claim of entitlement to a disability rating higher than 10 percent for tinnitus lacks legal merit. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.10, 4.85, Diagnostic Code 6260 (2017). 6. The criteria for a disability rating of 30 percent for headaches have been met; the criteria for a rating higher than 30 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.10, 4.124a, Diagnostic Code 8100 (2017). 7. The criteria for a disability rating higher than 0 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.97, Diagnostic Code 6513 (2017). 8. The criteria for a disability rating higher than 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2017). 9. The criteria for a disability rating of 10 percent for bilateral knee scars have been met; the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Code 7805 (2017). 10. The criteria for a disability rating higher than 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). 11. The criteria for a disability rating higher than 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). 12. The criteria for an effective date earlier than March 26, 2014, for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2017). 13. The criteria for an effective date earlier than March 26, 2014, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2017). 14. The criteria for an effective date earlier than March 26, 2014, for the grant of service connection for headaches have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2017). 15. The criteria for an effective date earlier than March 26, 2014, for the grant of service connection for bilateral knee scars have not been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from October 1987 to August 1995. This appeal comes before the Board of Veterans’ Appeals (Board) from January 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran submitted additional medical evidence subsequent to the most recent adjudication of his appeal by the agency of original jurisdiction (AOJ), and he provided a written waiver of initial adjudication by the AOJ. The Board has considered whether a claim of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the rating claims on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the Veteran has not asserted that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, and there is evidence that he is currently employed in a substantially gainful occupation. Service Connection The law governing VA disability compensation claims provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption regarding chronic diseases to attach, the designated chronic disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The presumptive chronic diseases include arthritis and psychoses. However, pertinent to the service connection claims on appeal, they do not include sleep apnea, any non-psychotic mental disorders, or any non-arthritic joint disorders. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire evidentiary record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service connection for sleep apnea. Service connection for an acquired psychiatric disorder. Service connection for a low back disorder. Service connection for a bilateral hip disorder. Service treatment records reveal no complaints, treatments, or diagnoses pertinent to a low back disorder, a bilateral hip disorder, sleep apnea, or an acquired psychiatric disorder. A report of medical history at service separation, completed by the Veteran on June 1, 1995, reveals the Veteran’s account that he had no history of, or current, arthritis, recurrent back pain, frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort (Record 09/18/1987 at 71). A report of medical examination performed at service separation, on June 1, 1995, reveals normal clinical findings for the spine, lower extremities, and throat, as well as a normal psychiatric examination (Record 09/18/1987 at 73). The Veteran separated from active duty service on August 26, 1995. He filed a service connection claim the following month (Record 09/19/1995). On that claim, he noted only knee disabilities, and did not report having any of the disorders currently claimed. In October 1995, a VA General Medical Examination was conducted to evaluate his service connection claim. Examination of the hips was normal. There was no evidence of a psychiatric or personality disorder (Record 10/19/1995). In correspondence received in December 2012, the Veteran simply noted that he was seeking service connection for arthritis of the hips and low back, but did not describe an in-service injury or disease affecting those joints (Record 12/10/2012). On the Notice of Disagreement, the Veteran simply noted that he was appealing the denial of his claims (Record 12/02/2014). After a review of all of the evidence, the Board finds that the existence of current sleep apnea, a psychiatric disorder, a bilateral hip disorder, and a low back disorder, has not been substantiated; and, to the extent such disability or disabilities exist, a relationship to service has not been established. The Veteran has neither submitted nor identified evidence that he has diagnosed sleep apnea, a psychiatric disorder, or back and hip disorders. The service separation examination and post-service VA examination in October 1995 provide probative and persuasive evidence that he did not have any of the claimed disorders in service, or shortly after service. Moreover, the service treatment records do not record any injury or disease with respect to any of these claims. In essence, none of the elements necessary to establish service connection are present with respect to any of the claims. To some extent, the Veteran has provided lay evidence of current disabilities. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). The Board finds that, while certain symptoms associated with the claimed disorders are capable of lay observation, establishing the presence of sleep apnea, any acquired psychiatric disorder, and musculoskeletal disorders of the hips and low back, generally requires medical knowledge and appropriate medical testing and evaluation. With respect to the service connection claims for the knees and hips, to the extent the Veteran subjectively reports of functional impact due to pain, there is no objective evidence of functional impairment. This is important, because in order to constitute a disability, subjective pain must result in some functional impairment; subjective pain in and of itself will not establish a current disability. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). Here, the evidence does not substantiate either an injury or disease in service or a current disability with respect to any of the Veteran’s claims. Accordingly, even if current disabilities could be established, that would be insufficient to establish service connection. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claims. However, the Board finds that a VA examination is not necessary in order to decide this claim. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). With respect to an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. The types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran’s claimed disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. In sum, the Board finds that the claimed disorders are not established. In the alternative, the Board finds that, even to the extent such disorders may be present, they are not related to injury or disease in service. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (the Board has the fundamental authority to decide a claim in the alternative). In light of these findings, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Ratings Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the 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 it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Increased rating for tinnitus. The Veteran is seeking an increased evaluation for tinnitus. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit upheld VA’s interpretation of 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a claimant to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no schedular basis upon which to award more than a single, 10 percent rating for tinnitus, the Veteran’s appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Neither the Veteran nor his 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, 371 (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). Increased rating for headaches. The current appeal arises from a claim of entitlement to service connection for headaches received at the RO on March 26, 2014. In a January 2015 rating decision, the RO granted service connection for headaches, assigned a disability rating of 0 percent, and assigned an effective date of March 26, 2014. Under Diagnostic Code 8100, migraine headaches are assigned a rating of 50 percent with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months, A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months. A rating of 0 percent is assigned with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The criteria set forth in Diagnostic Code 8100 are both successive and conjunctive. Thus, to satisfy the criteria for a higher level, a claimant must satisfy all the requirements of the lower levels (successive); and, must show each element listed for the particular rating to be assigned (conjunctive). See Johnson v. Wilkie, No. 13-3808, 2018 U.S. App. Vet. Claims LEXIS 1253 (2018). Further, because Diagnostic Code 8100 contains successive rating criteria, 38 C.F.R. § 4.7 (a higher rating should be assigned where the disability “more nearly approximates” the criteria for the higher rating) and 38 C.F.R. § 4.21 ( all elements of a specific rating need not necessarily be found) are not applicable to Diagnostic Code 8100. The report of a January 2015 VA Headaches Examination reveals the Veteran’s account of headaches at least 5 out of 7 days per week, or every other day or so. The Veteran reported constant head pain, pulsating or throbbing pain, pain in both sides of the head, and worsening of pain with physical activity. The Veteran reported nausea, sensitivity to sound and changes in vision. The Veteran reported characteristic prostrating attacks of migraine pain less than once every two months. The examiner noted that the Veteran has very frequent prostrating and prolonged attacks of migraine pain and non-migraine pain. The examiner noted prostrating attacks of non-migraine headache pain more frequently than once per month. The examiner diagnosed migraine and tension headaches (Record 01/13/2015 at 10). A September 2018 private Headaches DBQ completed by H. Skaggs, MD, notes that the Veteran experiences constant head pain, pulsating or throbbing head pain, pain on both sides of the head and pain worsening with physical activity. The Veteran reported nausea, vomiting, sensitivity to light and sound, dizziness, and vision changes. Headaches last less than 1 day. The Veteran reported characteristic prostrating attacks of migraine headache pain more than once per month. He has very frequent prostrating and prolonged attacks of migraine headache pain. In terms of functional impact, the examiner noted that the Veteran has prostrating headaches 3 or 4 times per month requiring him to lie down for 1 or 2 hours. He misses work an average of 2 days per month because of headaches (Record 09/19/2018). After a review of all of the evidence, the Board finds that the Veteran’s service-connected headaches have been manifested by characteristic prostrating attacks occurring on an average once a month over last several months, but have not been manifested by severe economic inadaptability. Therefore, while a rating of 30 percent is warranted, a rating of 50 percent is not warranted. In denying a rating of 50 percent, the Board acknowledges that the Veteran’s headaches impact his occupational performance. As noted by Dr. Skaggs, the Veteran has prostrating headaches 3 or 4 times per month, which require that he lie down for 1 or 2 hours. He misses an average of 2 days per month due to headaches. However, occupational impairment is acknowledged in any compensable disability rating. Van Hoose v. Brown, 4 Vet. App. 361 (1993). While the Veteran has argued that he has an understanding work environment which accommodates his symptoms, the Board finds that the picture presented is not one of severe economic inadaptability, but one of an employer making reasonable accomodation to a disabled employee, which allows him to adapt to his disability and to continue to function in a productive occupation. This type of accomodation should not be considered unusual, as it is required of all employers under the Americans with Disabilities Act. As noted above, without the criterion of severe economic inadaptability, the criteria for a 50 percent rating cannot be substantiated, as the criteria are both successive and conjunctive. Therefore, even if it were established that the Veteran’s disability was manifested by very frequent prostrating and prolonged attacks of migraine pain, the criteria for a 50 percent rating would still not be met. In light of these findings, the Board concludes that an increased rating of 30 percent is warranted; however, a rating of 50 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, to the extent of the denial of a rating of 50 percent, the preponderance of the evidence is against the claim. Therefore, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371 (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). Increased rating for bilateral hearing loss. The current appeal arises from a claim of entitlement to service connection for hearing loss received at the RO on March 26, 2014. In a January 2015 rating decision, the RO granted service connection for bilateral hearing loss, assigned a disability rating of 0 percent, and assigned an effective date of March 26, 2014. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. See 38 C.F.R. §§ 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The report of a January 2015 VA Audiology Examination reveals pure tone thresholds as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 15 30 21.25 LEFT 25 25 30 40 30 Speech recognition ability was 88 percent in the right ear and 96 percent in the left ear (Record 01/13/2015). Applying these values to Table VI results in level II in the right ear and level I in the left ear. Application to Table VII at 38 C.F.R. § 4.85 produces a 0 percent rating. After a review of all of the evidence, the Board finds that the combination of auditory acuity measurements present in this case is not compensable under VA law. In light of this finding, the Board concludes that an increased rating for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371 (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). Increased rating for sinusitis. Service connection for sinusitis was granted in a January 1996 rating decision and an initial disability rating of 0 percent was assigned under Diagnostic Code 6513, effective August 27, 1995. The current appeal arises from an increased rating claim received at VA on March 26, 2014. Under the General Rating Formula for Sinusitis, a 50 percent rating is for assignment following radical surgery with chronic osteomyelitis, or; near-constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A rating of 30 percent is for application with three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A rating of 10 percent is for assignment with one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Where sinusitis is detected by X-ray only, a rating of 0 percent is for assignment. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6513. The report of a December 2013 VA Sinus Examination reveals a history of episodic maxillary sinusitis. There was no tenderness of maxillary or frontal areas. Examination was negative for purulent discharge or crusting or tenderness of the head. The Veteran reported his last flare was 1 year prior. There were no incapacitating episodes or non-incapacitating episodes of sinusitis in the previous year. There were no scars or other pertinent physical findings. There was no impact on the Veteran’s ability to work (Record 12/02/2013). After a review of all of the evidence, the Board finds that the criteria for a compensable disability rating for sinusitis have not been met. While the Veteran’s sinusitis is not resolved, and a diagnosis is still medically rendered, the Veteran’s disability has not been manifested by one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Accordingly, the condition is essentially asymptomatic, and the criteria for a 10 percent rating have not been met. Moreover, as none of the criteria for ratings above 10 percent have been met, the Board also finds that the criteria for a 10 percent rating are not more nearly approximated than are the criteria for the current rating of 0 percent. In light of these findings, the Board concludes that the increased rating sought on appeal is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371 (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). Increased rating for bilateral knee scars The current appeal arises from a claim of entitlement to service connection for knee scars received at the RO on March 26, 2014. In a January 2015 rating decision, the RO granted service connection for knee scars, assigned a disability rating of 0 percent, and assigned an effective date of March 26, 2014. Diagnostic Code 7800 applies only to scars of the head, face, or neck, which is not shown or alleged here. Under Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear can be assigned a rating of 40 percent with area or areas of 144 square inches (929 sq. cm.) or greater. A rating of 30 percent requires area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A rating of 20 percent requires area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A rating of 10 percent requires area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Under Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. Under Diagnostic Code 7805, scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, are evaluated on the basis of any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. The report of a January 2015 VA Scars Examination reveals there were 3 scars of the right lower extremity, measuring 1 centimeter each. There were 5 scars of the left lower extremity. There were 3 scars measuring 1 centimeter each and 2 scars measuring 8 centimeters each. The scars were linear and were not deep. The examiner reported that the scars were not unstable. None of the scars caused limitation of function. The impact on the Veteran’s ability to work was characterized as tenderness of 1 of the scars on the left lower extremity. The Veteran reported 1 painful scar, which was sore and painful to the touch (Record 01/13/2015). After a review of all of the evidence, the Board finds that the criteria for a 10 percent rating have been met. The Veteran has a single scar that is painful. In order to warrant a rating in excess of 10 percent, the evidence would have to substantiate the presence of three or four scars that are unstable or painful. The Board also notes that, in light of the total coverage area of scars, and the absence of limitation of function resulting from the scars, there is no basis for any higher ratings under other applicable diagnostic codes. In sum, the Veteran’s service-connected knee scars have been manifested by a single painful scar. In light of this finding, the Board concludes that a 10 percent rating is warranted, but that no higher rating is warranted. To the extent any rating above 10 percent is sought, the Board finds that the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 371 (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). Increased rating for a right knee disability. Increased rating for a left knee disability. Service connection for right and left knee disabilities was granted in a January 1996 rating decision and initial disability ratings of 10 percent each were assigned under Diagnostic Code 5259, effective August 27, 1995. The current appeal arises from an increased rating claim received at VA on March 26, 2014. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee is assigned a rating of 30 percent if severe; a rating of 20 percent if moderate; and a rating of 10 percent if slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Lateral is defined as denoting a position farther from the median plan or midline of the body or structure. See Dorland's Illustrated Medical Dictionary 1022 (31st ed. 2007). Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a rating of 10 percent is assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limited flexion merits a rating of 30 percent where flexion is limited to 15 degrees; 20 percent where flexion is limited to 30 degrees; 10 percent where flexion is limited to 45 degrees; and 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limited extension merits a rating of 50 percent where extension is limited to 45 degrees; 40 percent where extension is limited to 30 degrees; 30 percent where extension is limited to 20 degrees; 20 percent where extension is limited to 15 degrees; 10 percent where extension is limited to 10 degrees; and 0 percent where flexion is limited to5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. The report of a December 2013 VA Knee Examination reveals the Veteran’s complaint of daily knee pain with sitting and standing. The Veteran did not report symptom flares. On examination, range of motion of the right knee was measured from 0 degrees to 110 degrees, with onset of pain at 110 degrees. After 3 repetitions of testing, range of motion was measured from 0 to 105 degrees. Range of motion of the left knee was measured from 0 to 120 degrees, with onset of pain at 120 degrees. After 3 repetitions of testing, range of motion was measured from 0 to 100 degrees. Functional loss consisted of less movement than normal, weakened movement, incoordination, and pain on movement. Muscle strength was full. Testing of anterior instability, posterior instability, medical-lateral instability, and patellar subluxation was normal. The Veteran had a history of meniscal conditions for both knees. The residuals consisted of pain and limited range of motion. The Veteran’s scars were not painful or unstable. The total area was less than 39 square centimeters (6 square inches). The examiner diagnosed status post meniscus tears and degenerative joint disease. The impact on the Veteran’s ability to work was characterized as long walking and standing cause pain of the knee, but does not cause unemployability. The examiner noted that the Veteran was working for an oil company (Record 12/02/2013 at 4). After a review of all of the evidence, the Board finds that ratings in excess of 10 percent are not warranted for the service-connected bilateral knee disability. The current ratings of 10 percent are assigned under Diagnostic Code 5259, which has a maximum rating of 10 percent. While Diagnostic Code 5258 includes a 20 percent rating, the criteria of dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint have not been satisfied. The semilunar cartilage is not dislocated, but has been removed. Moreover, the other criteria have not been satisfied. Moreover, the criteria of lateral instability and recurrent subluxation have not been met to substantiate a rating under Diagnostic Code 5257. “Lateral” instability is a specific type of instability that is demonstrated by clinical testing, such as varus, and valgus stress. Such testing has been negative in this case. The Veteran’s service-connected knee disabilities are productive of painful motion that does not meet the criteria for a compensable rating under Diagnostic Codes 5256, 5260, or 5261. While the Veteran has arthritis, a separate rating for arthritis with painful motion is not warranted in this case. The assigment of separate ratings under both Diagnostic Code 5259 the codes for limitation of motion would constitute pyramiding. See 38 C.F.R. § 4.14. There are only two requirements for a compensable rating under Diagnostic Code 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. The requirement of being “symptomatic” is broad enough to encompass symptoms including pain, limitation of motion, stiffness, and instability. The Board also notes that VA law does not contemplate the assignment of a disability rating on the sole basis of pain. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. These normal working movements of the body are evaluated in the case of a knee disability through range of motion testing and strength testing. As noted above, such testing has been conducted and has produced results that do not support a compensable rating. The Board also finds that the Veteran was provided examinations that are compliant with Correia v. McDonald, 28 Vet. App. 158 (2016). In sum, the Board finds that the Veteran’s bilateral knee disability has been manifested by meniscal removal with resulting painful motion. In light of this finding, the Board concludes that a disability rating in excess of 10 percent is not warranted for either knee. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his 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, 371 (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). Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Effective date for bilateral hearing loss. Effective date for migraine headaches. Effective date for bilateral knee scars. Effective date for tinnitus. The current effective date for the grant of service connection for each disability is March 26, 2014. This is based on the receipt of correspondence from the Veteran on that date stating: “Please consider this correspondence a claim for compensation benefits for headaches, tinnitus, [...]and scaring” (Record 03/26/2014). Prior to March 26, 2014, there is no correspondence that mentions any of these claims, or a claim of entitlement to service connection for hearing loss. A VA Form 21-4142, received on November 14, 2013 (Record 11/14/2013), and subsequently resubmitted, mentions treatment records for a knee meniscal tear. However, the Veteran had been service-connected for a left knee meniscectomy since 1995. There is no indication that he was seeking any additional benefits other than an increased rating for the already service-connected disability. Prior to that, correspondence received on December 10, 2012, states: “Please consider this correspondence a claim for compensation benefits for an increased rating for sinusitis, left knee and right knee and a new informal claim for arthritis in both knees, hips, and lower back.” There is no mention of hearing loss, headaches, scars, or tinnitus (Record 12/10/2012). The original compensation claim received on September 19, 1995, mentioned only surgery for the right knee and left knee (Record 09/19/1995). In developing that claim, a VA examination in October 1995 noted that his knee complaints were limited to range of motion reduction. Examination of the skin was normal (Record 10/19/1995). The January 1996 rating decision (Record 01/30/1996) reasonably apprised the Veteran of the basis for the grant of service connection, and it was reasonably apparent from that decision (Record 01/30/1996), from the attached cover letter (Record 04/03/1996), and from the attached rating codesheet (Record 01/30/1996), that no rating was being assigned for scars. The Veteran did not appeal that decision, nor did he submit new and material evidence within 1 year of that decision. To the extent that the Veteran now seeks to revisit the final 1996 decision, or any final decision, such claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). After review of all the evidence, the Board finds that there is no pending or unadjudicated claim of entitlement to service connection for hearing loss, tinnitus, headaches, or knee scars, prior to the March 2014 claim. The United States Court of Appeals for Veterans Claims (Veterans Court) held in Criswell v. Nicholson, 20 Vet. App. 501 (2006) that, while the law requires VA to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, nevertheless, it is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. Citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon v. West, 12 Vet. App. 32, 35 (1998). Moreover, the CAVC in Criswell went on to explain that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Citing Brannon, 12 Vet. App. at 35; 38 C.F.R. § 3.155(a). As noted by the CAVC on many occasions, applicable law requires that the expression of an intent to apply for a benefit, and that this intent must be expressed in writing. In this case, there was no claim, formal or informal, of entitlement to service connection for hearing loss, tinnitus, headaches, or knee scars, prior to the March 2014 claim. As such claims were not reasonably raised, they cannot now be considered pending or unadjudicated. Notwithstanding the presence of these disabilities prior to the date of claim, the effective date for the grant of service connection is the latter of the date entitlement arose and the date of claim. In this case, the date of claim is March 26, 2014, and the Board concludes that this is the appropriate effective date. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp