Citation Nr: 21001667 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 11-33 014 DATE: January 11, 2021 ORDER Service connection for osteoporosis is denied. Service connection for hypertension is denied. An initial rating higher than 10 percent for left knee osteoarthritis prior to September 2, 2020, is denied. An initial rating higher than 10 percent for right knee osteoarthritis prior to September 2, 2020, is denied. A rating higher than 30 percent for left knee osteoarthritis as of September 2, 2020, is denied. A rating higher than 20 percent for right knee osteoarthritis as of September 2, 2020, is denied. A separate rating for left knee instability is granted effective October 12, 2006. A separate rating for right knee instability is granted effective March 17, 2006. A rating higher than 30 percent for headaches is denied. FINDINGS OF FACT 1. The most probative evidence is against a finding that the Veteran’s osteoporosis had its onset during active duty service or is related to such service, to include any exposure event experienced by the Veteran during service in Southwest Asia; or that it was caused or aggravated by the service-connected osteoarthritis disabilities. 2. The most probative evidence is against a finding that Veteran’s hypertension had its onset during active duty service or is related to such service; that hypertension manifested within one year of the Veteran’s discharges from active duty service; or that the hypertension was caused or aggravated by the service-connected osteoarthritis disabilities. 3. Prior to September 2, 2020, the Veteran’s left and right knee osteoarthritis was not manifested by flexion limited to 30 degrees or worse; or compensable limitation of extension. 4. Since September 2, 2020, the Veteran’s left knee osteoarthritis is in receipt of the maximum rating provided for limitation of flexion under Diagnostic Code 5260 and has not manifested extension limited to 30 degrees or worse; his right knee osteoarthritis has not been manifested by flexion limited to 15 degrees or extension limited to 20 degrees or worse. 5. The Board resolves reasonable doubt in the Veteran’s favor by finding that his left knee had mild instability and merits the assignment of a separate 10 percent rating under Diagnostic Code 5257 effective October 12, 2006. 6. The Board resolves reasonable doubt in the Veteran’s favor by finding that his right knee had mild instability prior to August 28, 2006, and merits the assignment of a separate 10 percent rating under Diagnostic Code 5257 effective March 17, 2006. 7. The Veteran’s headaches are not productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for osteoporosis have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.310, 3.317. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for an initial rating higher than 10 percent for left knee osteoarthritis prior to September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 4. The criteria for an initial rating higher than 10 percent for right knee osteoarthritis prior to September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 5. The criteria for a rating higher than 30 percent for left knee osteoarthritis as of September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 6. The criteria for a rating higher than 20 percent for right knee osteoarthritis as of September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 7. The criteria for a separate 10 percent rating for left knee instability have been met effective October 12, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 8. The criteria for a 10 percent rating for right knee instability have been met effective March 17, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 9. The criteria for rating higher than 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1975 to March 1977, December 1990 to June 1991, and January 2003 to December 2003, with service in the Southwest Asia Theater of Operations in 1991 and 2003. He also had unverified service in the Army Reserve. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in July 2017 and November 2018. The Board previously determined that entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) had not reasonably been raised by the record since the Veteran was in receipt of a TDIU from June 8, 2011 to February 10, 2012, had been in receipt of a 100 percent combined schedular rating since February 10, 2012, and had not asserted that he was unemployable due to his service-connected disabilities prior to June 8, 2011. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service and hypertension becomes manifest to a degree of 10 percent within one year from the date of separation, the hypertension will be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Under legislation specific to Persian Gulf War veterans, service connection may be established for a qualifying chronic disability resulting from an undiagnosed illness that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more during a presumptive period. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “qualifying chronic disability” means a chronic disability resulting from any of the following (or any combination of any of the following): (A) an undiagnosed illness; (B) a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms; (C) any diagnosed illness that the Secretary determines warrants presumptive service-connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). A qualifying chronic disability must have manifested either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of at least 10 percent or more no later than December 31, 2021, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 C.F.R. § 3.317(a)(1). Objective indications of a chronic disability include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Compensation shall not be paid, 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 events that occurred between the appellant’s most recent departure from active duty in the Southwest 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 appellant’s own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(c). As noted in the Introduction, the Veteran served in the Southwest Asia theater of operations. Therefore, he qualifies for consideration for presumptive service connection for disabilities resulting from undiagnosed illness or unexplained chronic multi-symptom illness. 1. Service connection for osteoporosis The Veteran seeks service connection for osteoporosis, asserting that this condition is related to exposure to environmental hazards during his deployments in Southwest Asia, to include burn pits. Since he has been diagnosed during the appeal with osteoporosis, which is defined as a reduction in the amount of bone mass leading to fractures after minimal trauma, the first criterion for establishing service connection has been met and the question becomes whether this condition is related to service. See Dorland’s Illustrated Dictionary, 1200 (27th ed. 1994)). The preponderance of the evidence is against the claim for service connection for osteoporosis on a direct basis. Service treatment records do not document any complaint of, or treatment for, fracture and there is no reference to a diagnosis of osteoporosis made during any period of active duty service. In addition, the Board remanded this claim in July 2017 to schedule the Veteran for a VA examination, which was conducted in September 2017. The examiner provided an opinion that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness based on the rationale that osteoporosis was diagnosed in 2008 and while an article proposing a possible mechanism for vaccinations to aggravate osteoporosis had been found, there were no epidemiological studies documenting increased incidence of osteoporosis among Gulf War veterans. The Board finds this opinion, which stands uncontroverted in the record, to be of high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In the absence of a probative opinion linking the Veteran’s osteoporosis to active duty service, service connection is not warranted on a direct basis. The preponderance of the evidence is also against the claim for service connection for osteoporosis on a presumptive basis under the legislation specific to Persian Gulf War veterans since osteoporosis is a clinical diagnosis. The preponderance of the evidence is also against the claim on a secondary basis since the September 2017 VA examiner provided a probative opinion that the osteoporosis had not been caused or aggravated by the service-connected osteoarthritis conditions since they are different processes, with osteoporosis caused when bone resorption exceeds the rate of bone formation and osteoarthritis caused by the aging and wear and tear of bone joints. While the Veteran believes that his osteoporosis is related to service, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of osteoporosis are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any osteoporosis disorder, to include the assertion that his osteoporosis is related to in-service exposures, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Veteran’s own opinion regarding the etiology of his osteoporosis is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for osteoporosis, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for hypertension The Veteran seeks service connection for hypertension, asserting that symptoms manifested within one year following his period of active duty service in 2003. He has also asserted that his hypertension has been aggravated by the pain from his service-connected disabilities. Since he has been diagnosed during the appeal with hypertension, the first criterion for establishing service connection has been met and the question becomes whether this condition is related to service (on either a direct or presumptive basis) or to a service-connected disability. The preponderance of the evidence is against the claim for service connection for hypertension on a direct basis. Service treatment records document elevated blood pressure readings, but there is no reference to a diagnosis of hypertension and the examiner who conducted the September 2017 examination following the Board’s July 2017 remand provided an opinion that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness because the evidence did not support a diagnosis of hypertension in the service treatment records. The examiner acknowledged the elevated blood pressure readings during service, which were likely due to severe pain, and the elevated blood pressure reading shortly after the Veteran’s discharge from active duty service, but explained that these elevated readings and additional elevated readings do not meet the VA criteria for hypertension. The examiner also noted that the Veteran was diagnosed with hypertension more than one year after service. The Board finds this opinion, which stands uncontroverted in the record, to be of high probative value. See Nieves-Rodriguez, 22 Vet. App. at 302-04. In the absence of a probative opinion linking the Veteran’s hypertension to active duty service, service connection is not warranted on a direct basis and the claim must be denied. The preponderance of the evidence is also against the claim for service connection for hypertension on a presumptive basis in the absence of evidence that the Veteran was diagnosed with hypertension within one year of his three discharges from active duty service in March 1977, June 1991, and/or December 2003. The Board acknowledges that a September 2011 private treatment records contains a diagnosis of hypertension possibly due to chronic pain. This opinion, however, is not afforded high probative value since it is conclusory and speculative in nature. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative). While the Veteran believes that his hypertension is related to service, as a lay person, he has not shown that he has specialized training to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of hypertension are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of any hypertension, to include the assertion that symptoms of hypertension manifested within one year following his period of active duty service in 2003 and that his hypertension has been aggravated by the pain from his service-connected disabilities, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. Thus, the Veteran’s own opinion regarding the etiology of his hypertension is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim for service connection for hypertension, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz, 274 F.3d 1at 1364; Gilbert, 1 Vet. App. at 55-56. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 3. Entitlement to an initial rating higher than 10 percent for left knee osteoarthritis prior to September 2, 2020 4. Entitlement to an initial rating higher than 10 percent for right knee osteoarthritis prior to September 2, 2020 5. Entitlement to a rating higher than 30 percent for left knee osteoarthritis as of September 2, 2020 6. Entitlement to a rating higher than 20 percent for right knee osteoarthritis as of September 2, 2020   7. Entitlement to a separate rating for left knee instability 8. Entitlement to a separate rating for right knee instability prior to August 26, 2006 Service connection was originally granted for left knee and right knee osteoarthritis in a May 2006 rating decision that assigned initial 10 percent ratings effective March 21, 2005, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5257. The RO specifically noted that the 10 percent ratings were granted based on painful bilateral knee motion. The August 2007 rating decision that is the subject of this appeal reconsidered the initial ratings assigned and continued them; it also granted a separate 10 percent rating for right knee instability under Diagnostic Code 5257. Following the Board’s July 2017 remand, the RO issued an August 2018 rating decision that granted separate 10 percent ratings for left and right knee limitation of flexion effective September 28, 2017, under 38 C.F.R. § 4.71a, Diagnostic Code 5260. It subsequently issued a rating decision in October 2020 that determined there was clear and unmistakable error in the August 2018 rating decision for assigning separate 10 percent ratings under Diagnostic Code 5260 for the left and right knee osteoarthritis. The RO explained that separate compensable ratings for each painful joint motion and more than one compensable evaluation for painful motion of a joint are not permitted and that separate compensable evaluations should not have been assigned for painful motion of the bilateral knees. The RO further explained that the rating decision corrected this clear and unmistakable error, vacated the assignment of separate ratings for painful motion of the left and right knee joints under Diagnostic Code 5260, and assigned single 10 percent ratings under Diagnostic Codes 5010 and 5260 for painful motion of the left and right knee joints effective March 21, 2005. The RO specifically indicated that the provisions of 38 C.F.R. § 4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca and Mitchell had been considered and applied under 38 C.F.R. § 4.59. The October 2020 rating decision also increased the ratings assigned for left and right knee osteoarthritis to 30 and 20 percent, respectively, under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5261, effective September 2, 2020. Given the procedural history as discussed above, the Board must determine whether the Veteran is entitled to initial ratings higher than 10 percent for left and right knee osteoarthritis between March 21, 2005 and September 1, 2020, and whether ratings higher than 30 and 20 percent are warranted for the left and right knee osteoarthritis as of September 2, 2020, under Diagnostic Codes 5010, 5260, and 5261. And although the Veteran did not appeal the separate 10 percent rating for right knee instability granted under Diagnostic Code 5257 in the August 2007 rating decision, the Board may consider whether a rating for right knee instability is warranted prior to that date and may also consider whether a separate rating is warranted for left knee instability at any time since service connection was established on March 21, 2005. See VAOPGCPREC 23-97; 62 Fed. Reg. 63, 604 (1997). The Board need not determine whether a compensable rating should be reinstituted for the service-connected right knee instability, which was decreased to zero percent in the October 2020 rating decision effective September 2, 2020. Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The rating criteria provided for limitation of motion of the knee are found at Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of either knee limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004 (September 17, 2004). The Veteran seeks higher ratings based on his report of chronic pain, swelling, and stiffness of the knees; difficulty doing daily activities with family and friends; difficulty effectively and/or efficiently performing his job; and flare ups during changes in weather that limit his motion and cause chronic pain. He also reports that the bilateral knee condition has not improved and worsens daily. The Board finds that the preponderance of the evidence is against the claims for initial ratings higher than 10 percent for the left and right knee disabilities based on limited motion at any time prior to September 2, 2020. At no time prior to that date has either of the Veteran’s knees reflected motion limited to 45 degrees of flexion to support even a 10 percent rating under Diagnostic Code 5260. Rather, at worst, the Veteran exhibited flexion in the right knee limited to 90 degrees and in the left knee limited to 110 degrees. See VA examination reports dated October 2006, May 2009 and August 2010. A higher or separate rating for limitation of extension is also not warranted as the Veteran’s knees never reflected motion limited to 10 degrees of extension to support a 10 percent rating under Diagnostic Code 5261 at any time prior to September 2, 2020. Rather, bilateral extension was consistently reported as normal during VA examinations. Consideration has been given to left and right knee functional impairment and effects of pain on functional abilities prior to September 2, 2020. The Board acknowledges the Veteran’s statements made in writing and during VA examination and treatment regarding functional impairment caused by his knees. The Board also acknowledges that the October 2006 VA examiner reported that both knee joint function was additionally limited by pain following repetitive use by five degrees; that the September 2008 VA examiner reported that the bilateral knees had guarded movement, crepitus, and were limited by pain as the major factor, along with fatigue and lack of endurance, after repetitive use without additional limitation of motion; that the May 2009 VA examiner reported bilateral knee tenderness, right knee crepitus, and bilateral knee limitation of function due to pain without additional loss of motion; and that the September 2017 VA examiner reported pain with non-weight bearing and passive range of motion, pain with weight bearing that caused functional loss described as an ache when standing or walking, and that weight-bearing caused decreased motion noted to be at 90 degrees when rising out of chair under his own power. The functional impairment and effects of pain exhibited by the service-connected left and right knee disabilities prior to September 2, 2020, however, have already been considered by the RO in the assignment of the 10 percent ratings. The Veteran’s limitation of left and right knee motion has not risen to a compensable level under Diagnostic Codes 5260 and 5261. Thus, the 10 percent ratings presently assigned prior to September 2, 2020, contemplate the functional impact arising from the objective findings and the Veteran’s subjective complaints of painful motion. Accordingly, a higher or separate rating based on limitation of flexion and extension is not warranted prior to September 2, 2020. The Board also finds that the preponderance of the evidence is against the claims for ratings higher than 30 and 20 percent for the left and right knee disabilities, respectively, based on limited motion at any time since September 2, 2020. First, the Veteran is already in receipt of the maximum 30 percent rating provided under Diagnostic Code 5260 for limitation of flexion of the left knee. In order to merit the assignment of the next highest (40 percent) rating under Diagnostic Code 5261, his left knee would have to exhibit extension limited to 30 degrees. In order to merit the assignment of the next highest (30 percent) rating for limited motion, his right knee would have to exhibit flexion limited to 15 degrees (Diagnostic Code 5260) and extension limited to 20 degrees (Diagnostic Code 5261). At no time since September 2, 2020, either of the Veteran’s knees reflected motion limited to these degrees to support ratings higher than those currently assigned. Rather, at worst, the Veteran exhibited flexion in both knees limited to 100 degrees, right knee extension limited to 10 degrees, and left knee extension limited to 15 degrees. See September 2020 VA examination. Consideration has been given to left and right knee functional impairment and effects of pain on functional abilities as of September 2, 2020. The Board acknowledges the Veteran’s statements made during VA examination and treatment regarding functional impairment caused by his knees. The Board also acknowledges that the September 2020 VA examiner reported both knees had pain on flexion and extension that caused functional loss; that the right knee would be significantly limited in functional ability with repeated use over time due to pain, fatigue, weakness and lack of endurance, with flexion limited to 85 and extension limited to 15; and that the left knee would be significantly limited in functional ability with repeated use over time due to pain, fatigue, weakness and lack of endurance, with flexion limited to 80 and extension limited to 20. The functional impairment and effects of pain exhibited by the service-connected left and right knee disabilities as of September 2, 2020, however, have already been considered by the RO in the currently assigned ratings, since the October 2020 rating decision specifically noted that the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups as cited in DeLuca and Mitchell were considered and applied. Thus, the 30 and 20 percent ratings presently assigned as of September 2, 2020, contemplate the functional impact arising from the objective findings and the Veteran’s subjective complaints of painful motion. Accordingly, higher or separate ratings based on limitation of flexion and extension are not warranted for either knee as of September 2, 2020. The Board has also considered whether a rating for right knee instability is warranted prior to August 28, 2006, and whether a separate rating is warranted for left knee instability at any time since service connection was established on March 21, 2005, under Diagnostic Code 5257. See VAOPGCPREC 23-97; 62 Fed. Reg. 63, 604 (1997). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for slight, moderate, and severe recurrent subluxation or lateral instability of the knees, respectively. After review of the evidence of record, and resolving all doubt in the Veteran’s favor, the Board finds he is entitled to a 10 percent rating for mild right knee instability effective March 17, 2006, the day on which he was seen privately with report of having right knee giving way-type symptoms and was noted to have some true instability-type symptoms. The Board also finds the Veteran is entitled to a separate 10 percent rating for mild left knee instability effective October 12, 2006, the date of a VA examination during which he reported weakness and that his left knee gave way while walking. Since then, the Veteran has consistently reported intermittent left knee giving way when seeing VA treatment, to include most recently in September 2020. Higher ratings are not warranted for either knee as objective stability testing on VA examinations revealed no instability. The Board has considered whether the Veteran is entitled to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for surgery performed on his right knee on June 14, 2006 (arthroscopy with partial lateral meniscectomy; major therapeutic synovectomy, three compartments; and abrasion arthroplasty and microfracture of articular cartilage defect, trochlear groove and lateral femoral condyle and chondroplasty of articular cartilage of medial femoral condyle). The applicable laws and regulations provide that a temporary total rating may be assigned for a period of one, two or three months if at least one month of convalescence is necessitated by surgery for a service-connected disability, with such benefits payable from the date of entrance into the hospital or the date of outpatient treatment for the period in question. 38 C.F.R. § 3.401(h)(2), 4.30. Since the Veteran did not require at least one month to convalesce, and was only out of work until July 3, 2006, a temporary total rating under the provisions of 38 C.F.R. § 4.30 is not warranted. The Board has considered whether separate, compensable ratings would be warranted for the scars noted on the Veteran’s knees. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition.) In this case, however, the Veteran does not contend, and the evidence does not show, that a separate compensable rating is warranted for any of the reported scars since none have been described duringVA examination as painful and/or unstable and the total area of all related scars was not greater than 39 square cm (6 square inches). 9. Entitlement to a rating higher than 30 percent for headaches Service connection was originally granted for headaches in a November 2007 rating decision that assigned a 10 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100 effective March 21, 2005. The rating was increased to 30 percent in the March 2011 rating decision that is the subject of this appeal. The Veteran seeks a 50 percent rating for his headaches based on his assertion that they are severe and numerous. He also reports that he is constantly bothered by headaches as often as every other day to daily some months and there had been times when they occurred twice a day. Although he reportedly submitted a headache log to VA, and the Board remanded the claim in order to give the Veteran an opportunity to submit it when it was determined not to be of record, the headache log is still not of record. Diagnostic Code 8100 provides the rating criteria for migraine headaches. There is only one rating higher than 30 percent provided, namely a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” and neither has the Court of Appeals for Veterans’ Claims. By way of reference, the Board notes that “prostration” is defined as “utter physical exhaustion or helplessness” in Webster’s New World Dictionary of American English, Third College Edition (1986), see page 1080, and as “extreme exhaustion or powerlessness” in Dorland’s Illustrated Medical Dictionary. See 1367 (28th Ed. 1994). The preponderance of the evidence of record does not support the assignment of a 50 percent evaluation for the service-connected headaches at any time during the appeal period since the Veteran’s headaches were not manifested by impairment that more nearly approximates completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges the Veteran’s subjective complaints (made in both statements in support of his claim and in the medical evidence) involving his service-connected headache disability and that he was in receipt of a TDIU from June 8, 2011 to February 10, 2012. Although the Veteran listed his headaches as a disability on which his claim for a TDIU was based, the grant of entitlement to a TDIU was premised on the service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. In addition to the foregoing, although the Veteran reported during VA examination in August 2010 that functional impairment from headaches resulted in his inability to do anything physical, he did not report missing time off from work during that examination. Nor did he report missing time from work during a September 2017 VA examination; instead the functional impairment noted by the Veteran in the section where the examiner determined that his headaches impacted his ability to work was that headaches made it difficult to concentrate. Moreover, the July 2020 VA examiner determined that the Veteran’s headache condition does not impact his ability to work. These reports do not reflect that the Veteran’s headaches have been productive of severe economic inadaptability such that a rating in excess of 30 percent is warranted at any time during this appeal. Thus, the preponderance of the probative evidence is against a rating in excess of 30 percent. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.