Citation Nr: 21062942 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-22 608 DATE: October 12, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for migraines, effective January 4, 2014, is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome with limitation of flexion under Diagnostic Code 5260 is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome with limitation of flexion under Diagnostic Code 5260 is remanded. Entitlement to service connection for a separate rating for left knee patellofemoral pain syndrome with limitation of extension under Diagnostic Code 5261 is remanded. Entitlement to service connection for a separate rating for right knee patellofemoral pain syndrome with limitation of extension under Diagnostic Code 5261 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From January 4, 2014, the Veteran's migraines manifested with very frequent completely prostrating attacks capable of producing severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for migraines, but no higher, effective January 4, 2014 are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in April 2019. Most recently, the Board remanded this matter in December 2020 for additional development. The matter is now returned to the Board for further appellate review. 1. Entitlement to a 50 percent rating, but no higher, for migraines, effective January 4, 2014. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran's service-connected migraines are currently evaluated as 10 percent disabling prior March 10, 2014, 30 percent disabling from March 10, 2014 to September 23, 2019, and 50 percent disabling thereafter, under 38 C.F.R. § 4.119, DC 8100. Diagnostic Code 8100 provides for a 10 percent rating for migraines with characteristic prostrating attacks averaging one in two months over the last several months. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is granted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. The highest schedular rating available, 50 percent, is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The Court of Appeals for Veterans Claims (Court) has determined the language "productive of severe economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). "Severe economic inadaptability" remains undefined, but the Court has noted nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. at 445-46. The current appeal period begins on March 10, 2014, the date VA received notice of the Veteran's intent to file a claim for increased ratings, plus the one-year "look back" period, or March 10, 2013. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As noted above, the Veteran's service-connected migraines are currently evaluated 30 percent disabling from March 10, 2014 to September 23, 2019, and 50 percent disabling thereafter. The Board finds the Veteran had migraine headaches with very frequent completely prostrating attacks capable of producing severe economic inadaptability and a 50 percent rating is warranted, effective January 4, 2014. The Veteran submitted a Naval Hospital Camp Pendleton note that indicates he sought emergency medical treatment for a migraine on January 4, 2014 and was unable to attend work the following day. The accompanying emergency department treatment note indicates the Veteran is to follow up with his primary care provider for his migraines as soon as possible and to return to the nearest medical facility if his migraines return. VA provided the Veteran an examination in May 2014 to determine the severity of his migraines. The Veteran reported the severity of his migraines have increased and he gets two to three migraines per week. He reported his migraines manifest with constant pain, nausea, vomiting, sensitivity to light, and sensitivity to sound. The examiner noted the Veteran's migraines manifest with prostrating attacks on average once per month but are not productive of severe economic inadaptability. However, the examiner also indicated the Veteran's migraine headaches impact his ability to work because when he gets a migraine he must go home. In the July 2014 Notice of Disagreement (NOD), the Veteran reported his migraines are very painful and frequent, occurring four times per week. He further reported he cannot function when he gets a migraine and is usually "out of commission for the rest of the day after getting..." a migraine. The Veteran testified at an April 2019 Board hearing that in the previous 12 months he had been to the emergency room three or four times for migraines because his migraine medications were not working. He reported sensitivity to sound, cannot concentrate on anything, does not want anybody around him, just wants to be alone, and cannot function at all. The Veteran's VA treatment records contain several notations describing the severity of his migraines. In an August 2018 treatment note, the Veteran reported he has migraines daily. In a May 2017 treatment note, the Veteran reported that his migraines have increased in frequency and intensity. He reported that he is having at least four headaches per week, sometimes daily, and they last about three hours after he takes his medication. He reported symptoms of nausea, partial loss of vision, sensitivity to light, and sensitivity to sound. In February 2017, the Veteran reported migraines with pain of 7 out of 10, dizziness, feels the room is spinning, feels tired, and feels like he might faint. He also reported that his headaches last more than six hours, are moderate to severe, he experiences vertigo, muscle pain, and more weakness and fatigue than usual. In August 2016, the Veteran sought treatment for an acute migraine and reported his migraines have increased in frequency and intensity, occur four times per week, and last three hours after taking prescription medication. The Board is aware the May 2014 examiner reported the Veteran's migraines are not productive of severe economic impact; however, the Board finds the Veteran's testimony and other medical evidence of record suggest otherwise. The Veteran sought emergency care on multiple occasions, as early as January 4, 2014, for treatment of his migraines and has consistently reported that he cannot work when he has a migraine, must take the rest of the day off, and cannot work the following day. Moreover, the Board finds the January 4, 2014 emergency department note indicating the Veteran cannot attend work highly informative and indicative of severe economic inadaptability. The Board finds the Veteran competent to testify to the duration, severity, frequency, and impact of his migraines; his testimony credible; and affords it substantial weight. Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that since the Veteran's emergency department visit in January 2014, the Veteran has met the criteria for a 50 percent rating and his symptoms have been consistently severe since. As such, the Board finds the Veteran's migraines warrant a 50 percent rating, effective date of January 4, 2014. DC 8100 of 38 C.F.R. § 4.124a provides a maximum rating of 50 percent. Thus, the Veteran's service-connected migraine headaches are assigned the maximum schedular rating available for the disorder from January 4, 2014. 38 C.F.R. § 4.124a, Diagnostic Code 8100. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome with limitation of flexion under Diagnostic Code 5260 is remanded. 2. Entitlement to a rating in excess of 10 percent for right knee patellofemoral pain syndrome with limitation of flexion under Diagnostic Code 5260 is remanded. 3. Entitlement to service connection for a separate rating for left knee patellofemoral pain syndrome with limitation of extension under Diagnostic Code 5261 is remanded. 4. Entitlement to service connection for a separate rating for right knee patellofemoral pain syndrome with limitation of extension under Diagnostic Code 5261 is remanded. The Veteran's current left and right knee disabilities are rated at 10 percent disabling under Diagnostic Code 5260, limitation of flexion, effective March 10, 2014. The Veteran contends his knee disabilities warrant a higher rating. VA provided the Veteran an examination in February 2021. The examiner reported the Veteran's initial range of motion for left and right knee flexion was 110 degrees and his right and left knee extension was zero degrees. The examiner reported the Veteran experiences pain on weight-bearing, active motion, and passive motion that results in functional loss. The Veteran reported he experiences flare-ups of both knees. The examiner reported the Veteran's right and left knee yield flexion of 100 degrees and extension of zero degrees during a flare-up and after repeated use over time. The Veteran provided a Knee and Lower Leg Conditions Disability Benefits questionnaire completed by a private doctor, S.J., MD. Dr. S.J. reported the Veteran's initial range of motion for left and right knee flexion was 75 degrees and left and right knee extension was 35 degrees. The Veteran reported he experiences left and right knee flare ups. Dr. S.J. reported pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability during a flare-up and/or during repeated use over time, including less movement than normal. Dr. S.J. estimated the Veteran's range of motion due to pain and/or functional loss during a flare-up or when the joint is used repeatedly over time and reported the Veteran's right knee flexion was 10 degrees, right knee extension was zero degrees, left knee flexion was 5 degrees and left knee extension was zero degrees. The rating criteria for knee flexion and extension operate in the inverse. For flexion, the higher the degree shown the lower the rating warranted; however, for extension, the higher the degree shown the higher the rating warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The VA rating schedule, and its prohibition against pyramiding, does not prohibit the Veteran from receiving simultaneous ratings for limitation of flexion and extension if compensable range of motion loss has been shown for both. See Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017) (citing VA Gen. Coun. Prec. Op. 9-2004 (Sept. 17, 2004)). Here, the results recorded by Dr. S.J. are internally inconsistent. Dr. S.J. reported the Veteran experiences pain during flare-ups that causes less movement than normal; however, the Veteran's estimated extension measurements appear to have improved from 35 degrees bilaterally during initial range of motion testing to zero degrees bilaterally during flare-up and/or repeated use over time testing. When VA concludes that a private medical examination is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). The Board finds a remand is necessary to obtain clarification from Dr. S.J. regarding his initial left and right knee range of motion measurements and the estimated range of motion measurements during a flare-up and/or repeated use over time. The Board notes the private DBQ completed by Dr. S.J. contains estimated left and right knee flexion measurements during a flare-up and/or repeated use over time that would justify higher ratings under Diagnostic Code 5260. As noted above, the Board finds clarification of the measurements for extension during a flare-up and/or repeated use over time is required prior to adjudicating the Veteran's entitlement to service connection for separate ratings under Diagnostic Code 5261. Therefore, the Board is remanding the Veteran's increased rating claims for right and left knee limitation of flexion, under Diagnostic Code 5260, as inextricably intertwined with the service connection claims for limitation of extension, under Diagnostic Code 5261, because the estimated range of motion measurements during a flare-up and/or repeated use over time would be the basis for both the increased rating claims and service connection claims and the Board is seeking clarification regarding those measurements. 5. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the right and left knee patellofemoral pain syndrome issues being remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In March 2021, the Agency of Original Jurisdiction (AOJ) sent the Veteran VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and VA form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Although the Veteran has not returned either form, to afford the Veteran every opportunity to substantiate his claim, the Board will again request the AOJ provide the Veteran another opportunity to complete the forms. The Veteran is advised he must cooperate with the AOJ's efforts to obtain relevant evidence or VA will decide the issue on appeal based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (indicating the duty to assist is not always a one-way street). The matters are REMANDED for the following action: 1. Seek a clarifying medical addendum from the Veteran's private physician, S.J., M.D., which includes an explanation for the estimated range of motion measurements provided in section 6C., Contributing Factors of Disability Associated with Limitation of Motion. Specifically, Dr. S.J. is asked to explain whether the Veteran's estimated range of motion for extension due to pain and/or functional loss during flare-ups or when the joint is used repeatedly over a period of time have improved or if the estimated range of motion measurements were provided in error. If the estimated range of motion measurements were made in error, Dr. S.J. should provide additional estimated range of motion measurements for flexion and extension due to pain and/or functional loss during flare-ups or when the joint is used repeatedly over a period of time. (Continued on the next page) All efforts to obtain the requested addendum must be documented in the claims file. If an addendum cannot be obtained from S.J., M.D., a formal finding to this effect must be associated with the claims file. 2. Send the Veteran a VA form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and ask him to complete it in relation to his claim for a TDIU. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, Associate 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.