Citation Nr: 18159591 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-49 073 DATE: December 19, 2018 ORDER Service connection for right knee disability is denied. An initial compensable rating for tension headaches is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran has a right knee disability due to a disease or injury in service, to include specific in-service event, injury, or disease. 2. The weight of the competent evidence is against a finding that the Veteran’s migraines manifest with characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee diability have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The requirements for an initial compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to May 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the brief submitted by the Veteran’s accredited representative in June 2018 included the issue of posttraumatic stress disorder (PTSD). However, the same representative in October 2016, filed a Form 9 with an attached cover letter, stating that the only two issues being appealed were the bilateral knee and tension headache issues. The RO clarified in a November 2016 memorandum that only the right knee claim could be appealed because the time limit to file an appeal for the left knee had expired. SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Entitlement to service for right knee condition. The Veteran contends that his right knee disability is related to his active duty military service. A VA examiner in July 2013, diagnosed right knee chondromalacia and degenerative joint disease (DJD). The Veteran’s May 1987 entrance examination and accompanying Report of Medical History were both silent for right knee abnormalities. During service there is documented treatment for his left knee. He sought treatment for pain and swelling in the left knee in September 1992 and February 1993. However, there was no complaint, treatment, or a diagnosis related to his right knee during his active service. At discharge, his April 1993 separation examination and accompanying Report of Medical History were once again silent for right knee abnormalities. Following service, VA treatment records show treatment for the right knee beginning in April 2012. Imaging revealed mild degenerative arthritis. There was no evidence of fracture or dislocation. During treatment for right knee pain in June 2012, the Veteran reported ongoing pain from approximately August 2010. A magnetic resonance imaging (MRI) study in June 2012, revealed grade 4 focal chondromalacic and degenerative arthritis. There were no indications of a meniscal tear or an anterior cruciate ligament (ACL) tear. His orthopedics primary care physician assistant (PA) recommended weight loss, physical therapy for quad strengthening, and knee joint injections. A private physician, doctor PJY, submitted an assessment of the right knee condition in May 2012. The assessment included an inaccurate statement that the Veteran’s right knee was service-connected at the time of the assessment. The physician recorded ongoing pain concentrated at the sub patellar region. Moreover, the right knee gave out and locked up at random times. In addition, there was intermittent sub patellar swelling, clicking, and popping upon motion. The Veteran also wore a brace when he walked. The physician opined that his right knee condition was an extension of his active duty service. In July 2013, the Veteran was afforded a VA examination to determine the etiology of his right knee disorder. He reported constant pain bilaterally with the left knee being worse than the right. He experienced sharp pain resonating at a 9 on a 10-point scale. Medication provided temporary relief from the pain for approximately 4 hours. His knees gave out and popped frequently. He was less active due to the pain and could no longer participate in sports. Moreover, he reported a history of knee pain bilaterally for approximately 5 years; stating the pain had become progressively worse over the previous 3 years. The examiner diagnosed bilateral chondromalacia and DJD. Range of motion testing showed right knee flexion at 120 degrees and no objective evidence of painful motion on extension. Although there was pain associated with repetition of movement there was no muscle strength loss. The examiner opined that the right leg disability was not related to the Veteran’s active service. The rationale cited a lack of evidence for a chronic right knee condition during service. The Board notes that DJD is one of the enumerated diseases identified under 38 C.F.R. § 3.309(a), thus service connection may be established on a presumptive theory of entitlement for chronic diseases. However, the probative evidence of record here does not show that symptoms related to DJD manifested to a compensable degree during the year following service. In addition, the record does not support a continuity of symptomatology as the first reported treatment was in April 2012, approximately 19 years after service. Moreover, the Veteran has not asserted symptomatology on a continual basis following active service. The Board acknowledges the Veteran’s assertions that his right knee disorder is related to his active service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the right knee disability is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition here involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. In this regard, the July 2013 VA examiner has provided a thorough examination report that took into consideration the Veteran’s lay statements and provided a sufficient rationale for the Board to evaluate the claim. Thus, the Board gives great weight to VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In sum, the Veteran has a current disability; however, there is no nexus between the current disability and military service. The preponderance of the evidence weighs against a finding for service connection for the right knee disability. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102. INITIAL INCREASED RATINGS Entitlement to an initial compensable rating for tension headaches. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s service-connected tension headaches have been rated under the diagnostic code for migraines, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The term “productive of severe economic inadaptability” is also not defined in veterans’ law. However, the United States Court of Appeals for Veterans Claims (Court) has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of?” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). Analysis After review of the relevant medical and lay evidence, the Board finds that an initial compensable rating for tension headaches is not warranted. In May 2012, the Veteran underwent a private doctor consultation and examination for his current disabilities. The examiner diagnosed migraine headaches. Annotating almost daily migraine headaches which lasted two to eight hours. There was also long-standing treatment for the migraines during his active service and post-service. The Veteran was afforded a VA examination in July 2013. He reported experiencing headaches on and off since he was discharged from the military. Furthermore, he reported first experiencing daily headaches in approximately 2011. The headaches resulted in a throbbing pain that amounted to an 8 on a 10-point scale. The examiner recorded symptoms related to pulsating or throbbing on both sides of his head. There were no characteristic prostrating or prolonged attacks due to the headaches. There was no functional impact to his ability to maintain substantially gainful employment. The examiner diagnosed tension headaches. In his September 2013 notice of disagreement, the Veteran noted taking Oxycodone for his tension headaches. He noted daily headaches but did not describe them as prostrating. Based on the evidence above, the Board finds that the Veteran’s tension headache symptomatology most closely approximates a noncompensable rating during the period of appeal. Specifically, although the Veteran has experienced almost daily headaches, the record does not indicate prostrating attacks headaches averaging one in two months over the last several months. The Board recognizes the Veteran’s contentions that his symptoms warrant a higher initial rating. He is competent to make assertions based on observable symptoms and the Board finds him credible. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the description of symptoms noted in communications to VA and at his examination fail to reflect a disability picture consistent with a higher evaluation. The totality of the weight of competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with a noncompensable rating. The evidence shows generally the same symptoms throughout the period on appeal, therefore, staged ratings are not appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial compensable rating for the Veteran’s tension headache disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and the claim must be denied. 38 C.F.R. § 4.3, 4.7. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel