Citation Nr: 18154381 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 14-15 729A DATE: November 29, 2018 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is denied. Entitlement to a disability rating in excess of 30 percent for service connection migraine headaches is denied. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed right knee disability. 2. The Veteran does not have a currently diagnosed left knee disability. 3. Chronic fatigue syndrome was not manifest in service; has not manifest to a degree of 10 percent disabling since service; and is not attributable to service. 4. For the period on appeal, the Veteran’s migraine headaches have more nearly approximated symptoms consistent with characteristic prostrating headaches occurring on an average of once a month over the last several months, but are not manifested by attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. Chronic fatigue syndrome was not incurred in or aggravated by service and is not due to an undiagnosed illness or other qualifying chronic disability occurring in a Persian Gulf Veteran. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. § 3.102, 3.303, 3.317 (2018). 4. For the period on appeal, the criteria for an initial 50 percent disability rating for migraine headaches, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1986 to October 1986 (Army), and from October 1987 to October 1991 (Navy). The Veteran was awarded the Southwest Asia Service Medal. The RO found that he served in the Southwest Asia Theater during the Persian Gulf War. See August 2011 Rating Decision. Accordingly, the Veteran is a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 may apply if the Veteran is found to have a qualifying chronic disability. The May 2014 VA Form 9 contains a hearing request. The Veteran withdrew this request in a December 2017 correspondence. The Veteran received a letter in July 2018 informing him of the option to participate in the Rapid Appeals Modernization Program (RAMP). In an August 2018 response, the Veteran elected to participate in RAMP. However, the Board notes that the Veteran cannot elect participation in RAMP for appeals that have already been certified to the Board. The issue listed above was certified to the Board in October 2017. Therefore, the Veteran cannot elect participation in RAMP for this appeal and the Board is not precluded from proceeding with appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on the issue of service connection, there must be (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for chronic, undiagnosed illnesses (or a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome) arising from service in Southwest Asia during the Persian Gulf War may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). Compensation shall not be paid under this section, however, if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (c). 1. Entitlement to service connection for a right knee disability 2. Entitlement to service connection for a left knee disability The Veteran claims that he has a right and left knee disability related to his active duty service. He has not alleged a specific injury or event in service which caused his claimed knee conditions. Service treatment records from the Veteran’s second period of active service show no in-service treatment for a right or left knee condition. Furthermore, both his September 1987 enlistment examination and October 1991 separation examination deny any knee problems. Post-service VA treatment records and Social Security Administration records are also silent for right or left knee symptoms or diagnoses. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent the Veteran alleges these conditions, it appears to be based on self-diagnosis, and not on any statement from qualified medical professionals. The Veteran is a layperson, lacking any specialized medical knowledge or training, and is not competent to render a diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board recognizes that service treatment records from the Veteran’s first period of active service are missing. However, those records are irrelevant as these issues are being decided based on the lack of a diagnosed disability. As there is no current diagnosis, service connection is denied. 3. Entitlement to service connection for chronic fatigue syndrome, to include as an undiagnosed illness The Veteran seeks service connection for chronic fatigue syndrome. As noted above, the Veteran served in the Persian Gulf theater of operations during the Persian Gulf War. STRs for the relevant service period are silent for any treatment or complaints related to fatigue or frequent trouble sleeping. The October 1991 separation examination was essentially normal. Following service, in August 1999, it was noted that the Veteran experienced insomnia, but this was deemed to be a symptom of his bipolar disorder. In November 2013 the Veteran underwent VA Gulf War and Chronic Fatigue Syndrome examinations. The examiner noted that the Veteran’s medical history was normal, with no symptoms, abnormal findings or complaints reported. He examined the Veteran and found no evidence of chronic fatigue syndrome. Specifically, he determined that the Veteran did not currently have symptoms consistent with chronic fatigue syndrome. The examiner reviewed the claims file and found no indication that the Veteran had been treated or evaluated for chronic fatigue syndrome in service or since his discharge. He had not seen a physician for intermittent low-grade fever, non-exudative pharyngitis, palpable or tender cervical or axillary lymph nodes, generalized muscle aches or weakness, fatigue lasting 24 hours or longer after exercise, or migratory joint pain since his discharge from service. The Veteran stated that he had never been hospitalized or incapacitated for chronic fatigue syndrome since his discharge. The examiner concluded that the Veteran did not have a diagnosis of chronic fatigue syndrome. Based on a review of the record, the Board finds that service connection for chronic fatigue syndrome, including as due to an undiagnosed illness, is not warranted. A preponderance of the evidence shows that chronic fatigue syndrome was not manifested in service, or to a degree of 10 percent or more since service. Moreover, a preponderance of the evidence shows that the Veteran does not have a current disability of chronic fatigue syndrome. Thus, the claim must be denied on all theories of service connection. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In both initial rating claims and increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. Entitlement to a disability rating in excess of 30 percent for service connected migraine headaches The Veteran is seeking a disability rating in excess of 30 percent for his service connected migraine headaches. The RO has evaluated the Veteran’s headaches as 30 percent disabling, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. The 30 percent evaluation is effective January 7, 2011, the date of the Veteran’s claim for service connection for migraine headaches. Under Diagnostic Code 8100, a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating, the maximum schedular rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). The Rating Schedule does not define “prostrating.” However, “prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran’s Claims (Court) has noted that “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. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing “severe” economic inadaptability. In March 2011, the Veteran was afforded a VA headaches examination. The Veteran describe headaches occurring twice per week where he must sleep for two to four hours. He took Motrin for his headaches. He was not employed at the time, but reported that he was able to work through his headaches when he was employed. The examiner diagnosed the Veteran with non-prostrating migraine headaches twice per week for two to four hours. In November 2013 the Veteran underwent a second VA headache examination. The Veteran reported that he experienced headaches four times per week which last 12 to 15 hours. When he gets a headache, he will lay down and sleep most of the day. He did not take any medication for his headaches. He was not working at the time of the examination, but had worked one year prior. Non-headache symptoms included nausea, sensitivity to light, sensitivity to sound and changes in vision. Duration of typical head pain was less than one day located on the right side of the head. It was noted that the Veteran had characteristic attacks of migraine headache pain once per month. However, the Veteran did not have prostrating attacks of non-migraine headache pain. His headache condition did not impact his ability to work. The examiner concluded that the diagnosis was migraine headaches, prostrating type. It was difficult to give an accurate assessment of exactly how many prostrating type headaches he gets per month, because he does not seek treatment for these headaches, nor does he take any medications. The Veteran underwent a third VA headache examination in December 2015. The Veteran reported that he experienced frequent headaches with associated migraine symptoms. He took Ibuprofen for treatment. Non-headache symptoms included nausea, vomiting, sensitivity to light, sensitivity to sound and changes in vision. Duration of typical head pain was one to two days with head pain on both sides of the head. The Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once per month. However, the Veteran did not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Board finds that the Veteran’s migraine headache disability more nearly approximates the 30 percent rating criteria. Throughout the entire period on appeal, the Veteran’s headaches have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Every VA examiner noted that the Veteran’s headaches resulted in prostrating attacks of migraine/non-migraine headache pain once per month or less. Furthermore, it has never been shown that the Veteran’s headaches result in severe economic inadaptability. It was even noted during the March 2011 headache examination that the Veteran worked through his headaches. Despite the evidence that the Veteran suffers from frequent headaches, the evidence must demonstrate more than just frequency to establish entitlement to a 50 percent rating; the severity of the headaches must result in a prolonged state of extreme exhaustion or powerlessness which is not shown here. Therefore, the evidence does not suggest that the Veteran is entitled to a 50 percent disability rating. Accordingly, the Board finds that a 30 percent rating is warranted for the duration of the appeal period. Regarding extraschedular consideration, the Board finds that it is not warranted in this case. Diagnostic Code 8100 indicates migraines should be rated according to the frequency of prostrating attacks, which incorporates pain, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The regular schedular criteria thus contemplate both the symptoms and the level of disability suffered by the Veteran - less than completely prostrating attacks. The effects of the Veteran’s disability have been fully considered and are contemplated in the rating schedule. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Service treatment records (STR) for the Veteran’s second period of active service include a September 1987 enlistment examination, which contains a normal clinical evaluation of the spine. The Veteran sought treatment for back pain following a March 1990 motor vehicle accident. No diagnosis for the back was provided, and X-rays of the lumbar spine were not ordered. In October 1991 no back problems were reported on the Veteran’s separation examination. The Veteran underwent a VA examination in March 2011. He reported a history of intermittent low back pain for approximately 10 years. Upon physical examination, the examiner found no tenderness to palpation over the low back area and no muscle spasms. The range of motion showed that forward flexion is 0 to 35 degrees, extension 0 to 20 degrees, right and left lateral rotation 0 to 30 degrees in each direction, and right and left lateral flexion 0 to 15 degrees in each direction. After repetitive use, only forward flexion was reduced to 0 to 30 degrees. Range of motion was decreased due to pain. The examiner diagnosed chronic lumbosacral strain “with additional diagnoses pending x-ray.” He opined that it is more likely than not that the Veteran’s chronic lumbosacral strain is not related to his active duty. He explained that the Veteran sought no additional care for his low back condition after the motor vehicle accident in the one and a half years that he was on active duty. He noted that during the separation examination, the Veteran checked “no” in response to the question concerning recurrent back pain. He also noted that the Veteran himself stated that his back pain stated approximately 10 years ago, but that he had separated from active duty approximately 20 years ago. Finally, he explained that the Veteran first sought treatment from VA in 1998, and there was “no mention whatsoever of any low back condition at that time, and going forward to the present time, there is no mention of any low back condition.” The examiner indicated that “this report must include the report of the lumbosacral spine x-rays.” X-rays taken later that day revealed mild lumbar scoliosis. However, the examiner was not asked to provide an opinion with respect to the scoliosis. STRs of record, which pertain to the Veteran’s second period of active service, do not reflect any evidence of a low back disability. However, the RO did not request STRs from the Veteran’s first period of active duty service. Remand is required to obtain those records and an addendum opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records for the period of active service from July 1986 to October 1986. 2. Then, obtain an addendum opinion from the same examiner who performed the March 2011 examination, if available. Please address the following: (a) Determine whether the Veteran’s currently diagnosed scoliosis is a congenital defect or a congenital disease. (b) If a defect, the examiner is asked whether there is a superimposed injury or disease that as likely as not (50 percent or greater probability) aggravates (that is, caused an increase in severity beyond the normal progress of the disease) the defect or the symptoms caused by the defect. The examiner should consider the March 1990 motor vehicle accident. (c) If a disease, the examiner is asked whether there is clear and unmistakable evidence that the back disability preexisted active service. If there is, the examiner must identify the evidence making it undebatable that the diagnosis preexisted service. The examiner is then asked whether it is also clear and unmistakable that the diagnoses did not increase in severity during service. If not possible to find undebatable evidence for these two inquiries, the examiner is then asked to opine on whether it is as likely as not (50 percent or greater probability) that this diagnosis incepted during service. (Continued on the next page)   A complete rationale for any opinion expressed is required. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel