Citation Nr: 18106907 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 14-25 184A DATE: June 1, 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 a 30 percent disability rating for migraine headaches is granted, subject to controlling regulations applicable to the payment of monetary benefits. FINDINGS OF FACT 1. A right knee disability is not currently manifest and did not manifest at any point during the appeal period. 2. A left knee disability is not currently manifest and did not manifest at any point during the appeal period. 3. Throughout the period under consideration, the Veteran’s migraine headaches are characterized by prostrating attacks occurring on an average of at least once a month over the last several months that require the use of medication and rest; the headaches are not productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. A left knee disability was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for a 30 percent disability rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2006 to November 2012. These matters come before the Board of Veteran's Appeals (Board) from October and December 2013 rating decisions of the Department of Veteran Affairs (VA), Regional Office (RO). On the Veteran’s substantive appeals for her migraine headaches and knees claims dated July 2014, she requested a hearing before a Veterans Law Judge. However, in March 2016, she informed VA that she would like to cancel the hearing request. Accordingly, her request for a hearing is considered to be withdrawn. The Board notes that the Veteran's appeal also initially included an issue of entitlement to service connection for brain lesions. This claim was denied in a February 2014 rating decision. The Veteran thereafter filed a timely notice of disagreement as to this issue, and the RO continued the denial of this issue in a June 2014 statement of the case. The RO also issued separate statement of the cases for the Veteran’s right and left knee disabilities claims and the migraine headaches claim in June 2014. The Veteran subsequently filed a VA Form 9 in July 2014, in which she checked the box in section 9.A. indicating she wished to appeal all issues listed in the statement of the case and any supplemental statements of the case that were sent to her by the RO. She then specifically noted that her Form 9 pertained to the statement of the case denying her right and left knee disabilities claims. She also submitted another Form 9 in July 2014 in which she checked the box in section 9.A., but then noted that the Form 9 pertained to the statement of the case denying an increased disability rating for migraine headaches. Pertinently, she did not submit a Form 9 addressing the statement of the case denying service connection for brain lesions. Indeed, such issue has not been certified on appeal. Therefore, while the Board notes the Veteran’s representative listed service connection for brain lesions in the April 2018 Informal Hearing Presentation, the Board finds that such issue is not before the Board as no substantive appeal was submitted following the issuance of the June 2014 statement of the case. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Although the Veteran has not raised any issues with the duty to notify or assist, the Board notes that most of the Veteran’s service treatment records during her period of active duty are not associated with the claims folder. The Veteran was advised in December 2012 that these service treatment records are unavailable and that she should forward copies of any available service records in his possession. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the Court elaborated on the VA's responsibility to obtain a Veteran’s service treatment records. The Board finds, however, that no useful purpose would be served in remanding this matter for more development. In this case, the RO has attempted to locate the Veteran’s service treatment records. The RO submitted a request to the service department in December 2012 asking for all available military medical records. In response to the request by the RO, the service department forwarded a negative response. The RO subsequently concluded that these records are unavailable. There is no indication that these records exist. The Board observes that, where records are unavailable, "VA has no duty to seek to obtain that which does not exist." See Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile]. So it is in this case. Service connection for right and left knee disabilities The Veteran contends that she has right and left knee disabilities that are related to her service. In her VA Form 9 dated July 2014, she indicated that these disabilities are related to her combat injuries during service in Iraq and Afghanistan. With regard to consideration of 38 U.S.C. § 1154 (2012), while the Board acknowledges the Veteran’s service in Iraq and Afghanistan, as will be discussed below, the evidence of record does not demonstrate the Veteran has current right and left knee disabilities and that service connection is not warranted on this basis. Veterans are entitled to compensation from VA if they develop a 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.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). 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 issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The evidence of record establishes that the Veteran does not have current right or left knee disabilities. In March 2016, the Veteran was afforded a VA examination to determine the nature and etiology of her claimed right and left knee disabilities. The VA examiner noted the Veteran’s complaints of bilateral knee pain and that she has had knee pain for many years. After examination of the Veteran, although noting tightness in the Veteran’s hamstring musculature, the VA examiner declined to diagnose the Veteran with a right or left knee disability. She documented normal range of motion and 5/5/ muscle strength testing in the knees. Stability testing was also normal. The examiner further reported no pathological findings on physical examination or by X-ray. In this case, the Board finds that the most probative evidence weighs against finding that the criteria have been met for a current right or left knee disability. In this regard, the Board finds it highly probative that the VA examiner opined that the Veteran does not have a right or left knee disability based upon a thorough examination. The Board further notes that there is no medical evidence contrary to the VA examination report indicating that the Veteran has normal knee findings during the appeal period. In addition, although the Veteran served in the Persian Gulf, she cannot establish service connection for an undiagnosed illness under 38 C.F.R. § 3.317, because there is no indication of a chronic disability, and there is not shown to be an undiagnosed or a medically unexplained chronic multi-symptom illness. Such findings were determined by the VA examiner in the March 2016 report. There are no findings to the contrary. The Board has considered the Veteran's statements that she has right and left knee disabilities. The Veteran is competent to provide evidence of that which she experiences, including her symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); Kahana v. Shinseki, 24 Vet. App. 428, 433, n.4 (2011). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what she experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there are current right and left knee disabilities. The Veteran's lay assertions are therefore afforded less probative weight, and less credibility than the VA examination report. In this instance, the Board concludes that the most probative evidence establishes that the Veteran does not have right and left knee disabilities due to disease or injury. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, in the absence of current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no disability that resulted from a disease or injury. We emphasize that under the provisions of 1110, there must be disability and such disability must be due to disease or injury. Although Saunders (Fed.Cir.) addressed whether pain could be a disability, Saunders did not eliminate the requirement that there be underlying acquired pathology (disease or injury). Because the appellant served in Iraq, the Board has the provisions of 38 U.S.C. § 1117. The law provides for a grant of service connection for a qualifying disability that is due to an undiagnosed illness or an unexplained multisystem illness. Here, she has complained of knee pain. However, disability is not shown in this case. There is a full range of motion and there is normal strength. Nothing credible establishes that there is impairment consistent with Saunders. Here, there are no signs of objective evidence perceptible to an examining physician or non-medical indicators that6 are capable of independent verification. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for right and left knee disabilities under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Higher evaluation for migraine headaches Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (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. See 38 C.F.R. § 4.7 (2017). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's migraine headaches have been evaluated by the RO as noncompensably disabling under Diagnostic Code 8100. Under Code 8100, migraine headaches resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraine headaches resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating;" nor has the Court. By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In weighing the evidence of record, the Board finds that the Veteran's headaches more closely approximate the criteria for a 30 percent rating under Diagnostic Code 8100. Significantly, the evidence shows that the Veteran's migraine headaches have averaged more than once a month throughout the appeal period and are prostrating. At a February 2013 VA examination, she reported migraine headaches that were sharp and constant in nature. Although her headaches were not recorded as prostrating, her symptoms included nausea, vomiting, sensitivity to light, and sensitivity to sound. On VA examination in January 2015, the Veteran reported taking medication for her headaches. The migraines lasted for a couple of hours to a couple of days. The pain was localized to the right side of the head and occurred on a daily basis. Pertinently, the examiner documented prostrating attacks. While the examiner noted that the prostrating attacks occurred only once in two months, the Veteran has credibly reported that she must lay down for 10 to 15 minutes when a headache occurs due to being exhausted and in pain from the headache. See the January 2015 VA examination report. VA treatment records further document the Veteran’s report of frequent headaches. See, e.g., a VA treatment record November 2016. Moreover, on her July 2014 VA Form 9, the Veteran reported that her headaches cause her to lie down and stop all activities. The foregoing credible medical and lay evidence supports a finding that the Veteran’s headaches are characteristically prostrating in nature. Given that the RO has rated the headaches as migraine headaches, and by resolving reasonable doubt in favor of the Veteran, the Board finds that the symptomatology of her service-connected headaches more nearly approximates the criteria of characteristic prostrating attacks occurring on an average of once a month over the last several months. Accordingly, she is entitled to a 30 percent rating under Diagnostic Code 8100. The evidence fails to show, however, that the Veteran's headaches are completely prostrating and productive of severe economic inadaptability, such as would warrant a 50 percent evaluation. While the Veteran's headaches undoubtedly result in substantial discomfort, no evidence shows that they result in the degree of impairment contemplated for a 50 percent evaluation under Diagnostic Code 8100, in particular severe economic inadaptability. While the Board acknowledges the report in the Veteran’s April 2018 Informal Hearing Presentation that her migraine headaches affects her employability and that she has not been employed full-time since November 2012, the Veteran has not specifically noted how her migraine headaches affects her employability. Indeed, the Board notes the January 2015 VA examiner’s report that the Veteran’s migraine headaches are not productive of severe economic inadaptability. Moreover, the Board finds that there has been no objective evidence submitted that her headaches have impaired her employment beyond that contemplated by the 30 percent rating. She has not reported whether she missed any time from work due specifically to the migraines, or whether her job position was in jeopardy due to her headaches. Thus, although the frequency of her headaches may be more than once a month, her headaches are not productive of severe economic inadaptability. As such, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran’s migraine headaches. In summary, for the reasons and bases set forth above, the Board concludes that a 30 percent rating, but no more, is warranted for the Veteran's migraine headaches for the entire period of this appeal. With regard to extraschedular consideration, neither the Veteran nor her representative has raised any issue pertaining to this matter, nor have any other issues pertaining to extraschedular consideration been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (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). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel