Citation Nr: 21064970 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 18-50 093A DATE: October 22, 2021 ORDER Entitlement to an initial rating of 30 percent of tension headaches is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for left knee patellofemoral pain syndrome (previously rated as bilateral knee and ankle conditions) is remanded. Entitlement to service connection for right knee patellofemoral knee pain syndrome (previously claimed as bilateral knees and ankle condition) is remanded. Entitlement to service connection for temporomandibular joint disorder (TMJ), included as secondary to PTSD or tension headache condition, is remanded. FINDINGS OF FACT 1. The Veteran experienced the equivalent of migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; the preponderance of the evidence is against finding that headaches were productive of, or capable of producing, severe economic inadaptability. 2. The Veteran does not have a current diagnosis of bilateral hearing loss per Department of Veterans Affairs (VA) regulations. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but not higher, for tension headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 2003 to March 2006. The issues come before the Board of Veterans' Appeals (Board) on appeal from January 2018, August 2018, and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law judge. The transcript is of record. 1. Entitlement to an increased rating of 30 percent of tension headaches Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran contends he is entitled to an increased initial rating of for his service-connected tension headaches. Migraines are evaluated under 38 C.F.R. § 4.124a DC 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 1080 (3rd Ed. (1986)), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. (2012)), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Veteran filed a claim for benefits on September 12, 2018. A January 2018 rating decision assigned a noncompensable rating for posttraumatic headaches effective July 27, 2017. The Veteran filed a notice of disagreement in September 2018 contending that he is entitled to an increased initial rating. The Veteran attended a VA examination in July 2018.. He reported experiencing daily headaches that included pulsating or throbbing head pain on both sides of his head and pain that worsens with physical activity. Additionally, the Veteran reported experiencing sensitivity to light that typically lasts less than one day. Functionally, the examiner noted that the Veteran's headache condition impacts his ability to work as his symptoms affect his ability to focus and concentrate on work tasks. However, the examiner found that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran contends that the evidence supports a compensable rating as the July 2018 examination indicates prostrating attacks that occur on average at least once a month. At his examination the Veteran reported headaches daily that affect his ability to concentrate. While the July 2018 examiner concluded that the Veteran does not have prostrating attacks, he reports functional limitations resulting in the inability to concentrate. At his May 2021 Board hearing, the Veteran's testimony regarding his headache symptomology was found to be truthful and credible. The Veteran reported that his headaches are worse in the morning and range from mild to splitting and debilitating. He sometimes wakes up with pounding headaches and noted that he has "really bad headaches" that he described as "worse than a hangover" at least a couple times a week, though clarified that its inconsistent. Some weeks the Veteran has a splitting headache every single day of the week and other weeks, his headaches are not as severe. However, he reported that more than half of the time he wakes up with a headache of some sort. Functionally, the Veteran indicated that he has shown up late to work due to his headaches. He also stated that his headaches can make the first half of his workday tedious, but that it tends to get better as the day goes on. Based on the Veteran's competent and credible description of his symptoms, the Board finds the Veteran's symptoms are most consistent with the criteria contemplated by a 30 percent rating for the entire period on appeal. The Board has considered whether a rating in excess of 30 percent is warranted and finds that the severity, frequency, and duration of the Veteran's symptoms do not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While the Veteran reported that his headaches result in difficulties with concentration and has caused him to be late for work, he indicated he "usually can tough it out and go to work." There is no other evidence indicating that the headaches affect the Veteran's economic adaptability. These statements indicate that the Veteran's headache does not result in severe economic inadaptability. 2. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While hearing loss is not a disease specifically enumerated as a chronic disease under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. Accordingly, service connection may be granted on a presumptive basis for sensorineural hearing loss if it is shown to manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends that he is entitled to service connection for bilateral hearing loss during active service. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of these frequencies are 26 dB or greater, or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran did not have a current bilateral hearing loss disability for VA purposes at any time since this claim was submitted. As such, the claim of the entitlement to service connection must be denied. The Veteran attended a VA examination in January 2018. See January 2018 VA Examination. Audiometric testing revealed Puretone thresholds, in decibels, were as follows: The Veteran's Maryland CNC score for word recognition was 98% for his right ear and 100% for his left ear. The VA examiner determined that the Veteran had normal hearing in his right ear from 500 Hz to 8000 Hz. The VA examiner also determined that the Veteran had normal hearing in his left ear through from 500 Hz to 8000 Hz. The Veteran's post service clinical treatment records do not include any current hearing loss diagnosis nor evidence of hearing loss for VA purposes for the Veteran's ears. To the extent that the Veteran has alleged that the Veteran had hearing loss of his bilateral ears for VA purposes, the Board finds this allegation without probative value. The determination of the presence of hearing loss for VA purposes requires specialized testing and interpretation of the test results. As a lay person, the Veteran is not competent to provide this evidence as he does not have the requisite medical training to interpret the results. To establish a right to compensation for a present disability on a direct basis, the Veteran must show the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). In this case, the evidence does not establish a present hearing loss disability as defined by VA at any time since the claim has been filed, and the claim must fail on this basis alone. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Veteran's bilateral hearing loss did not rise to the level required to be considered disabling for VA purposes. As a current diagnosis of hearing loss per VA regulations is not shown for the period at issue and since the preponderance of the evidence weights against claim, the Veteran is not entitled to the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed Cir. 2001). Therefore, the claim for service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for left knee patellofemoral pain syndrome (previously rated as bilateral knee and ankle conditions) is remanded. 2. Entitlement to service connection for right knee patellofemoral knee pain syndrome (previously claimed as bilateral knees and ankle condition) is remanded. The Board cannot make a fully informed decision on the issue of service connection for right shoulder condition because a VA examiner has not considered the Veteran's May 2021 hearing testimony. Once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In January 2018, a VA examiner opined that the Veteran's right and left knee conditions were less likely than not (50 percent probability or greater) caused by or a result of an event in military service. The examiner noted that the Veteran's service treatment records (STRs) make no references to knee symptoms, conditions, or diagnoses. The examiner noted an August 2003 report of limb pain, a March 2004 note of limb pain, and an August 2004 note of left leg joint pain. The examiner opined that since the service treatment records are silent for any knee conditions, it is difficult to associate the current bilateral knee diagnosis with military service. The opinion does not consider all the relevant evidence of record, including lay statements. Nieves-Rodriguez, 22 Vet. App. 295; Dalton, 21 Vet. App. 23. Since the January 2018 VA examination, the Veteran testified before the Board. In May 2021, the Veteran testified that his knees were injured by running in formation at a slow pace during service and that he has experienced pain in his knees ever since. See May 2021 Hearing Transcript. The Veteran testified that he did not have any problems with his knees before military service and that his knee condition has worsened over the years. The undersigned Judge found the Veteran to be competent and credible. The VA examiner did not benefit from this additional lay evidence added to record later. An addendum VA medical opinion addressing this evidence is warranted. 3. Entitlement to service connection for temporomandibular joint disorder (TMJ), included as secondary to PTSD or headache conditions, is remanded. The Veteran contends that his TMJ was caused or aggravated by his service-connected PTSD and headache conditions. The Board notes that the Veteran was granted service connection for PTSD in June 2009 and tension headaches in January 2018. In addition, the Veteran indicated at his Board hearing that the pain in his jaw had worsened due to his PTSD and headache conditions. See May 2021 Board Hearing. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection may be also established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (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). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. This claim was denied based on a lack of in-service complaints or treatment for the Veteran's TMJ condition. However, the Veteran's service treatment records note complaints of headaches and the Veteran contends his in-service roommate told him that he heard the Veteran grinding his teeth at night. The Board notes that the Veteran has not had a VA examination for compensation and pension purposes, nor has a secondary opinion been rendered. At this time, there is insufficient medical evidence for the Board to decide this claim. As such, it must remand this matter to secure a VA medical opinion on the etiology of the Veteran's claimed TMJ disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA and/or identified pertinent private treatment records to the extent possible. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain a medical opinion to determine the nature and etiology of the Veteran's bilateral knee conditions from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file, including a copy of this remand. Based on a review of the record, the examiner must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left and right knee conditions manifested in or is otherwise related to service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner should address the Veteran's competent and credible testimony that his left and right knees were injured while running in formation during service and that he has experienced pain in his knees ever since. The Veteran testified that he did not have any problems with his knees before military service. Such reports must be acknowledged and considered in formulating any opinion. If the medical professional rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusion. The examiner must address and reconcile, to the extent possible, the medical opinion with the January 2018 VA examination report. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. Obtain a VA medical opinion regarding the etiology of the Veteran's TMJ condition from a medical professional with appropriate expertise. The claims file must be forwarded and reviewed by the examiner. A notation should be made on the examination report that the claims file has been reviewed. Based on a review of the record, the examiner is to render the following opinions: (a.) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's TMJ condition is the result of active duty service? (b.) If the answer to (a.) is negative, then whether it is at least as likely as not that the TMJ condition was caused by the Veteran's service-connected PTSD or headache conditions? (c.) If the answer to (b.) is negative, then whether it is at least as likely as not that the TMJ condition was aggravated beyond its natural progression by the Veteran's service-connected PTSD or headache conditions? Please explain in detail any opinion provided and the supporting rationale. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.