Citation Nr: 18155727 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-53 499A DATE: December 6, 2018 ORDER Entitlement to an evaluation higher than 10 percent prior to June 30, 2014 and higher than 30 percent thereafter for migraines due to post-concussion syndrome is denied. Entitlement to an evaluation higher than 10 percent (aside from a temporary 100 percent rating based on surgical procedure necessitating convalescence) prior to June 11, 2015 and a noncompensable evaluation thereafter for right knee instability due to patellar tendonitis with chondromalacia, avulsion fracture, and shin splint is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to June 11, 2015, the Veteran’s right knee was manifested by slight instability; but not by moderate recurrent subluxation or instability. 2. As of June 11, 2015, the Veteran’s right knee manifested by joint stability; and not manifested by recurrent subluxation or instability. 3. Prior to June 30, 2014, the Veteran’s migraines most nearly approximated characteristic prostrating attacks averaging one in two months. 4. As of June 30, 2014, the Veteran’s migraines most nearly approximate characteristic prostrating attacks occurring four to five times a month without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to June 11, 2015, the criteria for an evaluation in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. As of June 11, 2015, the criteria for a compensable evaluation for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. Prior to June 30, 2014, the criteria for an evaluation in excess of 10 percent for migraines have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 4. As of June 30, 2014, the criteria for an evaluation in excess of 30 percent for migraines have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2008 to March 2013. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Court has indicated that in claims for increased ratings, the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence in this case, namely the Veteran’s January 2016 statement, raises the issue of whether the Veteran’s service-connected disabilities preclude her from maintaining a substantially gainful occupation. The Veteran reports significant difficulty walking, weight-bearing, bending, kneeling, squatting, and using stairs and ladders due to his right knee instability. An inferred TDIU issue is addressed in the remand portion of the decision. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed their claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Higher Evaluations for Right Knee Instability The Veteran’s right knee instability is rated at 10 percent under Diagnostic Code 5257, effective March 20, 2013. A June 2015 rating decision assigned a temporary 100 percent rating based on surgical procedure necessitating convalescence pursuant to 38 C.F.R. § 4.30 from August 19, 2014 to November 1, 2014, at which point it was reverted to 10 percent. As of June 11, 2015, a noncompensable rating is in effect. Initially, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The Board finds the requirements of Correia specifically apply to painful motion and range of motion testing and do not pertain to testing for instability. The Board also notes that the criteria for ratings under Diagnostic Code 5257 are not predicated upon loss of range of motion. The Board therefore finds that the VA examinations as they pertain to the issue of right knee instability are adequate for appellate review. As discussed above, the requirements of Correia do not apply to testing for instability. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations, and the examiners’ observations, the Board finds they are entitled to significant probative weight with respect to the severity of any right knee instability at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). Under Diagnostic Code 5257, a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability; and, a 30 percent rating will be assigned for severe recurrent subluxation or lateral instability. The Board observes that the words “slight,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board also notes that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are inapplicable to ratings under DC 5257 because that Code is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In June 2014, the Veteran was evaluated for right knee pain. He reported a previous knee surgery in 2011 for the patellar tendon, followed by physical therapy with no pain relief. He reported that he never regained full strength, full extension, or the ability to comfortably weight-bear following the 2011 surgery. He also reported intermittent buckling of the knee. He used a cane and reported going to the emergency room ten days prior, where he was given Norco. The Veteran was fitted for a hinged patellofemoral knee brace to give him additional support while ambulating. He was scheduled for an MRI the following month, which showed that only a very thin strand of the patellar tendon was still attached to the patella, as well as no evidence of prior surgery. The Veteran’s prior patellar repair was assessed as a failure and he was recommended to undergo a revision procedure. Six days following the MRI, during an evaluation for chronic migraines/headaches, the Veteran reported knee pain, which he rated as an eight on a 10-point scale. He ambulated with a straight right knee and no assistive devices, but used a right knee brace. Right knee crepitus and popping were noted. On August 19, 2014, the Veteran underwent diagnostic right knee arthroscopy and revision open patellar tendon repair. The Board notes there is no evidence that the Veteran sought any further medical treatment for right knee instability post-surgery until his VA examinations in June 2015 and May 2017. During the June 2015 VA examination, the Veteran reported that he did not undergo physical therapy following his August 2014 procedure. He complained of daily right knee pain that was aggravated by weight-bearing, bending, and kneeling. He stated he had trouble tolerating stairs, intermittent swelling, and “giving way.” He reported that flare-ups limited mobility. The June 2015 and May 2017 VA examinations found no evidence of pain with weight-bearing, no objective evidence of crepitus, normal stability testing, 5/5 muscle strength, no muscle atrophy, and no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran also used no assistive devices. Based on the lay and medical evidence of record, the Board finds that an increased rating in excess of 10 percent for right knee instability is not warranted at any time prior to June 11, 2015. While it is clear that the Veteran endorsed subjective feelings of right knee instability during this period, the medical evidence only indicates the Veteran’s instability required a brace and, at only one point in time, the Veteran used a cane, which is consistent with the level of severity contemplated by a 10 percent rating for “slight” instability. There is no indication in the lay or medical evidence that the Veteran’s instability during this period was moderate in nature. As such, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for right knee instability. Turning to the rating assigned for right knee instability as of June 11, 2015, the Board finds the preponderance of the evidence is against a finding that the Veteran’s right knee reflects (or approximates) slight instability, as to warrant a compensable rating. In this regard, as noted above, joint stability testing from June 11, 2015 has been found to be normal and the Veteran used no assistive devices. Accordingly, the Board finds the preponderance of the evidence is against a finding that the Veteran’s right knee warrants a compensable rating as of June 11, 2015, on the basis of instability. Higher Evaluations for Migraines The Veteran’s migraines are rated at 10 percent prior to June 30, 2014 and 30 percent thereafter. The Veteran contends that an increased rating is warranted for migraines as the disability manifests severe prostrating migraine headaches. The Veteran’s migraines are currently rated under Diagnostic Code 8100, which provides a 10 percent rating for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum scheduler evaluation of 50 percent is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. During a May 2012 VA examination, the Veteran attributed his migraine headaches to an in-service concussion. He stated his headaches started at the base of his skull and either stayed there or moved upward toward his head. The headaches occurred three to four times a week and typically lasted three to four hours. He used Midrin and Topamax with little relief. He reported light and stress could initiate a headache and that sometimes he woke with a headache. He also reported problems with memory. The examiner indicated the Veteran’s subjective symptoms mildly interfered with instrumental activities of daily living and work. In January 2014, the Veteran reported ongoing headaches at the base of the neck that occurred daily. He reported no nausea or vomiting. In February 2014, the Veteran reported that he strained his neck the previous week which resulted in a “bad headache.” He reported he was doing well prior to the neck strain. A July 2014 medical treatment note indicates the Veteran reported his headaches/migraines had increased to two to three per week due to stress from knee pain. He reported that he was unemployed. Later that month, the Veteran reported photophobia, nausea, and blurry vision but no sensitivity to sound. He reported tingling in the feet and pain in both temples coming from the base of the neck. Upon VA examination in June 2015, the Veteran reported experiencing headaches twice a week lasting all day that were prostrating twice a month, but the VA examiner found the Veteran had one prostrating attack of migraine per month on average over the previous several months. The examiner found that he did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The Veteran used Ibuprofen. He reported headaches did not have a major impact on his job, although incapacitating headaches occurred twice a month. In July 2015, the Veteran reported more frequent migraines and neck pain, which were getting more severe and kept him awake at night. The Veteran attributed his headaches to stress. He reported no focal neurological symptoms or photophobia. The Veteran was diagnosed with headache and suspected muscle tension and prescribed Fioricet. That same month, the Veteran reported worsening and daily migraines and neck pain that were moderately severe. The Veteran was diagnosed with post concussive syndrome and traumatic brain injury (TBI). In an August 2015 statement, the Veteran reported that his migraines occurred once a week, and caused severe nausea resulting in vomiting. He reported the headaches lasted approximately 48 hours, but upon dissipation, still caused severe neck pain that affected his concentration and tolerance to light and noise. A January 2017 VA examiner found that despite having headache pain more than two days, with various associated symptoms, including nausea and changes in vision, the Veteran had no characteristic prostrating attack of migraine every month and no very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner also indicated headaches did not impact the Veteran’s ability to work. During an April 2017 VA examination, the Veteran reported having migraines two to three times a week that lasted for at least a day. He reported his migraines were triggered by light, noise, and neck pain. He also complained of associated nausea, vomiting, light and noise sensitivity, and blurred vision. He reported the migraines were prostrating and that he used a cold compress while lying in a dark quiet room. He used Fioricet as needed. The examiner found that head pain lasted one to two days. The VA examiner found the Veteran had one characteristic prostrating attack of migraine every month and that he did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner indicated the Veteran’s headache condition impacted his ability to work as he had prostrating migraines two to three times a week. After review of the evidence, the Board finds the Veteran’s migraines most nearly approximate the criteria associated with a 10 percent evaluation prior to June 30, 2014. Although the Veteran reported very frequent headaches (as frequently as daily per the Veteran’s reports in January 2014), there is no evidence of prostrating attacks. In fact, the evidence shows the Veteran’s headaches only mildly interfered with his ability to work and perform daily living activities. As such, a 10 percent evaluation is warranted prior to June 30, 2014. The Board also finds the Veteran’s migraines most nearly approximate the criteria associated with a 30 percent evaluation as of June 30, 2014. The competent medical evidence establishes that although the Veteran reported experiencing very frequent attacks of headaches, and while some of these attacks are prostrating, especially in light of the associated nausea, vomiting, and sensitivity to light and sound, the Board finds that they are not of similar frequency, severity, and duration as contemplated by a maximum 50 percent evaluation. See Vazquez-Claudio v. Shinseki, 713 F. 3d 112 (Fed. Cir. 2013) (holding in the context of a claim for an increased rating for a psychiatric disorder that a higher rating is warranted if a veteran demonstrates symptoms associated with that percentage, or others of similar frequency, severity, and duration). VA medical examiners in June 2015 and August 2017 establish that the Veteran, at most, experiences one characteristic prostrating attack of migraine every month and that he did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The term “prostrating” is not defined in VA regulation, nor has the Court of Appeals for Veterans Claims (Court) defined it. Cf. Fenderson, 12 Vet. App. 119 (quoting Diagnostic Code 8100 verbatim, but not specifically addressing the matter of what is a prostrating attack). For reference purposes, the Board notes that “prostration” is defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). VA’s Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as “causing extreme exhaustion, powerlessness, debilitation, or incapacitation with substantial inability to engage in ordinary activities.” See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). The evidence simply does not indicate that the Veteran has experienced the inability to engage in ordinary activities to this degree. The Veteran’s employment activities are also not consistent with a finding of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA regulations do not define the term “economic inadaptability.” However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In this case, there is little probative evidence indicating the Veteran’s migraines are of sufficient severity to prevent him from maintaining employment. According to a June 2015 review evaluation of residuals of TBI, the Veteran last worked in May 2014 at Walmart as a sales associate, but “was unable to meet the physical demands of his job due mainly to back and knee problems. He state[d] memory problems and headaches did not interfere with his job significantly.” During a June 2015 mental disorders VA examination, the Veteran reported that he had not worked since his military discharge, which he attributed to his service-connected physical issues. In an August 2015 statement, the Veteran attributed his inability to find employment to his right knee instability. He also reported, during a May 2017 VA knee examination, that when worked his knee condition slowed him down. The Veteran’s work history and complaints of frequent headaches clearly demonstrate that his service-connected migraine disability has some impact on occupational functioning. For example, an April 2017 VA examination indicated the Veteran’s prostrating migraines, which occurred two to three times a week, impacted his work, but the Board does not find that this impact most nearly approximates severe economic inadaptability. He has either worked or attributed his inability to work to his service-connected physical abilities, specifically his back and right knee disabilities. While the Veteran’s migraines have impacted his ability to maintain employment, the record does not contain any evidence that it has resulted in severe economic inadaptability. The Board notes that in June 2015, the Veteran reported headaches did not have a major impact on his job despite experiencing incapacitating migraines twice a month. The Board therefore finds the Veteran’s migraines do not most nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board has considered whether there is any other schedular basis for granting a higher rating other than the rating assigned above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. Therefore, the claim for increased ratings for migraines is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND Inferred TDIU With regard to the inferred TDIU claim, lay evidence of record reflects that the Veteran is unable to work due to his right knee instability and has not worked but on one occasion, as a Walmart sales associate, since his separation from service. Further, competent medical evidence of record indicates the Veteran’s right knee impacts his ability to walk, weight-bear on the right leg, bend, kneel, squat, and use stairs and ladders. Under these circumstances, the Board finds that the inferred TDIU claim should be developed by the AOJ. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 3. The AOJ should review the record and send an appropriate letter to the appellant to ensure compliance with all notice and assistance requirements with respect to his inferred TDIU claim. The AOJ should forward the   appropriate forms, including VA Form 21-8940 and VA Form 21-4192, for completion. Any relevant employment records identified should be obtained. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel