Citation Nr: 21072207
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 10-37 448
DATE: December 2, 2021

ORDER

Entitlement to an increased rating of 10 percent, but no higher, for patellofemoral syndrome of the left knee, is granted, effective April 1, 2008, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an increased rating higher than 10 percent for patellofemoral syndrome of the left knee, effective December 24, 2014, is denied.

Entitlement to an increased rating of 10 percent, but no higher, for patellofemoral syndrome of the right knee, is granted, effective April 1, 2008, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an increased rating higher than 10 percent for patellofemoral syndrome of the right knee, effective December 24, 2014, and 20 percent, effective June 4, 2021, is denied. 

Entitlement to an increased rating of 30 percent, but no higher, for tension headaches, is granted, effective April 1, 2008, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. Effective April 1, 2008, the Veteran's left knee patellofemoral syndrome is manifested by painful motion. 

2. Effective April 1, 2008 to June 4, 2021, the Veteran's right knee patellofemoral syndrome is manifested by painful motion. 

3. Effective June 4, 2021, the Veteran's right knee patellofemoral syndrome is manifested by limited flexion to 20 degrees. 

4. Effective April 1, 2008, the Veteran experienced headaches with characteristic prostrating attacks occurring on average once a month over the last several months.  His headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

5. The Veteran did not return a completed VA Form 21-8940 to support his claim for TDIU, and the preponderance of evidence is against finding that the Veteran's service-connected disabilities result in total unemployability.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 10 percent, but no higher, for left knee patellofemoral syndrome, effective April 1, 2008, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

2. The criteria for a disability rating in excess of 10 percent for left knee patellofemoral syndrome, effective December 24, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

3. The criteria for a disability rating of 10 percent, but no higher, for right knee patellofemoral syndrome, effective April 1, 2008, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

4. The criteria for a disability rating in excess of 10 percent for right knee patellofemoral syndrome, effective December 24, 2014, and 20 percent, effective June 4, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260.

5. The criteria for a disability rating of 30 percent, but no higher, for headaches, effective April 1, 2008, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

6. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Marine Corps from November 2002 to March 2008.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously before the Board in June 2017 and June 2020 when it was remanded for further development. The directives of the Board's prior remands having been substantially complied with the case is now returned for appellate review. Specifically, the RO sent the Veteran a letter in July 2020 requesting that he submit authorization to release additional medical records and a VA-Form 21-8940 for his TDIU claim. The RO also provided the Veteran with VA examinations in June 2021. In addition, the RO followed up with the Veteran regarding identified private treatment received in April 2021 in efforts to obtain the records.

During the last remand, the RO granted service connection for annal fissure in a June 2021 rating decision, removing this matter from appellate consideration. 

The RO also granted an increased rating of 20 percent for the right knee disability, effective June 4, 2021. As the Veteran has not indicated that he is satisfied with this rating, this matter is still before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Increased Rating

1. Entitlement to an increased rating for patellofemoral syndrome of the left knee 

2. Entitlement to an increased rating for patellofemoral syndrome right knee  

The Veteran seeks higher ratings for his bilateral knee disabilities. 

The Veteran's patellofemoral syndrome of the bilateral knees is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg.  Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees.  A 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. 

Of note, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, Diagnostic Code 5260 was unchanged.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Effective April 1, 2008 to December 24, 2014, the Veteran has noncompensable (i.e., 0 percent) ratings for his knee disabilities. 

The Board finds that the preponderance of the evidence is in favor of 10 percent ratings for the knees, effective April 1, 2008. The Veteran noted on a pre-discharge examination in October 2007 that he had pain in his knees with continuous use. The pain was described as an aching, cramping, sharp, pain, and throbbing pain. The level of pain was at an 8 out of 10, brought on by physical activity. Range of motion studies of the knees was from 0 to 140 degrees. The examiner commented that range of motion in the knees was entirely within normal limits without pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There was no ankylosis and no varus or valgus was appreciated. There also was no Drawer's and McMurray's. Although there was bilateral crepitus noted, x-ray examination was normal. The diagnosis was patellofemoral syndrome of the knees. 

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during repetitive use over time. Even though the Veteran had full range of motion of the knees and no findings of arthritis on examination, a 10 percent rating can be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). The Veteran described painful motion in his knees, at an 8 out of 10, brought on by physical activity, which he is competent to describe. There is no reason shown to doubt his credibility, in this regard. Thus, resolving all doubt in his favor, ratings of 10 percent are warranted for the bilateral knee disabilities, effective April 1, 2008. 

Effective December 24, 2014, the Veteran has ratings of 10 percent for the bilateral knee disabilities. The Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for patellofemoral syndrome of the knees, effective December 24, 2014. A December 2014 VA examination report shows range of motion studies in the left knee was from 0 to 120 degrees; and in the right knee from 0 to 130 degrees. There was no pain on weight-bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the left knee, but not the right knee. There was no additional functional loss or range of motion after three repetitions. There was no ankylosis and joint stability tests were normal. The Veteran stated that he occasionally used a cane. X-ray examination of the knees did not show arthritis. There was no acute fracture or subluxation. Joint spaces were well-maintained. There were no significant degenerative changes evident. Soft tissues were unremarkable.

Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had painful motion would not result in limitation of motion more nearly approximating flexion limited to 30 degrees.

In June 2021, the Veteran underwent another VA examination for his knees. The Veteran stated that he was not able to run or walk as long as he could before. He also was not able to play with his kid. He reported pain with locking or fully extending. He was not able to squat. Range of motion studies showed active and passive range of motion on the right knee from 0 to 65 degrees. After repetitive use testing the right knee motion was from 0 to 20 degrees. Factors causing functional loss included pain. In the left knee, there was no additional loss of motion after repetitive use. Additional limiting factors included not being able to make sudden movements and interference with standing. Joint stability testing was normal. There were no meniscal conditions or surgeries.

Based on these findings, the Veteran's right knee was assigned a 20 percent rating for limitation of flexion to 20 degrees under Diagnostic Code 5260 (flexion limited to 30 degrees warrants a 20 percent rating), effective June 4, 2021. For the left knee the rating of 10 percent remained. 

The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right knee patellofemoral syndrome, effective June 4, 2021, and 10 percent for left knee patellofemoral syndrome. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and limited movement.  However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he could not squat or run or play with his kid would not result in limitation of motion more nearly approximating flexion limited to 15 degrees for the right knee, or 30 degrees for the left knee, effective June 4, 2021.

The Board has also considered the other Diagnostic Codes pertaining to the knee and leg.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

There are no findings of ankylosis. Thus, Diagnostic Code 5256 does not apply. 

The medical evidence does not show any findings of subluxation or instability in the knees. The Veteran noted the use of a cane on examination in December 2014 but did not specify that this was due to his instability in his knees. He also has not described any instability in his knees. Thus, ratings under Diagnostic Code 5257 are inapplicable.

In addition, there are no findings of dislocated or removal of semilunar cartilage; so, ratings under Diagnostic Code 5258 and Diagnostic Code 5259 are not warranted. 

The Veteran's knees do not reflect any limitation of extension. So, ratings under Diagnostic Code 5261 do not apply. 

Ratings under Diagnostic Codes 5262 and 5263 also are not warranted, as there is no impairment of the tibia and fibula or genu recurvatum, respectively. 

In conclusion, the Board finds that 10 percent ratings, but no higher, are warranted for the knees, effective April 1, 2008; but the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the knees, effective December 24, 2014; and for the left knee higher than 20 percent, effective June 4, 2021. In denying any additional higher ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to an increased rating for tension headaches, currently rated as 0 percent disabling prior to December 24, 2014, and 30 percent, thereafter 

The Veteran seeks higher ratings for his headaches. 

The Veteran's headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine.  Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  A 50 percent rating is the highest schedular rating under DC 8100.

The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation.  Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness."  Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The rating criteria for a 50 percent rating also contain several undefined phrases.  The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating.  Johnson, 30 Vet. App. at 253.  The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless.  Id.  The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract."  Id. (internal citation omitted).  Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability."  Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating.  Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).  This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable.  Johnson, 30 Vet. App. at 252.

The Board concludes that the Veteran's headaches warranted a 30 percent rating for the entire appeal, i.e., since April 1, 2008. 

An October 2007 pre-discharge examination shows the Veteran stated that his headaches were most painful when his back hurt. When the headaches occurred, he sometimes would go to work and require medications. He noted headaches about four times per week lasting several hours. Symptoms were pounding sensation in his head and sometimes it was related to distress about four times per week. Depending on the severity of functioning, he would just lie in a bed in the dark. There were no current treatments. The diagnosis was tension headaches. Subjective factors included history of pounding headaches, which he had been told in the past were related to selective serotonin reuptake inhibitors and/ or narcotics. Objective factors were none currently on examination. The number of prostrating attacks was four times per week lasting several hours. 

The Veteran is competent to report his readily observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  There also is no reason to doubt the Veteran's credibility, in this regard. 

Considering all relevant evidence of record, the Board finds a rating of 30 percent is warranted for the Veteran's headaches, effective April 1, 2008. Specifically, the October 2007 VA examination report shows that the Veteran had prostrating attacks of headaches four times per week. 

The Board concludes that the Veteran headaches consist of characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under Diagnostic Code 8100.  While the Veteran reported having prostrating headaches four times per week, which is more than once a month, his headaches were not described has being completely prostrating or productive of severe economic inadaptability. The October 2007 examination shows the Veteran stated when the headaches occurred, he sometimes would go to work and require medications. These findings do not rise to the criteria for a 50 percent rating for headaches.

A December 2014 VA examination report shows the Veteran's symptoms included daily mild to moderate frontal and occipital headaches. There was no associated nausea/ vomiting or photophobia. He was presently employed as a teacher and had missed a couple of days for viral type illnesses. The headache pain occurred on both sides of the head. He had characteristic prostrating attacks of headache pain once a month. He did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. His headaches did not impact his ability to work.

A June 2021 VA examination report shows the Veteran reported pounding headaches that radiated down his neck. He reported having them weekly. The examiner noted that the Veteran did not have characteristic prostrating attacks of headache pain. The examiner commented that the Veteran was likely to have poor concentration due to tension headaches and limited focus, however, there were no limitations as the symptoms were not reported as prostrating. It was noted that the Veteran might need accommodations to include dimming the light in the work area, as well as limiting computer time.

A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. These findings are not demonstrated by any of the medical evidence of record. While the October 2007 VA examination report noted prostrating attacks occurring four times per week, the Veteran reported that he would still sometimes would go to work and require medications. The Veteran reported in December 2014 that he was working as a teacher and had not missed work for his headaches. The June 2021 VA examination report also noted that the Veteran had no limitations due to his headaches. Thus, the Board concludes that the Veteran did not have headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period.  A higher 50 percent rating is not warranted under DC 8100.

In conclusion, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's headaches, effective April 1, 2008. In denying any additional higher rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU)

While the Veteran has not specifically claimed entitlement to a TDIU, in the June 2017 remand, the Board found that, in light of an addendum to an October 2007 medical board noting that the Veteran had been on permanent convalescent leave in April 2007 following a back surgery, and the Veteran's July 2016 statement that he was seeking a 100 percent rating, the record reasonably raised the question of whether the Veteran is unemployable due to his service-connected disabilities, and the issue of entitlement to a TDIU rating was part and parcel of the claim for a bilateral knees and headache disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a).

The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31Vet. App.58, 73 (2019).

If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

The Veteran meets the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16 (a), based on his combined disability rating for his service-connected disabilities throughout the appeal, i.e., since April 1, 2008. 

However, there is no record that the Veteran is not presently gainfully employed. A December 2014 VA examination report shows the Veteran was presently employed as a teacher. There is no subsequent updated employment information of record. The Veteran was sent a letter in July 2020, which included the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This form requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. The Veteran did not return this form to VA and did not respond in any way. 

A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. However, the Veteran did not return VA Form 21-8940 to support his claim. 

A June 2021 VA examination report for the knees noted that the Veteran was able to perform work in an office setting or in a physical setting that did not require ambulating for long periods of time. The Veteran was not able to perform any duties that required bending, squatting, or stooping. A June 2021 VA examination report for the headaches notes that the Veteran was likely to have poor concentration due to tension headaches and limited focus, however, there were no limitations as the symptoms were not reported as prostrating. It was noted that the Veteran might need accommodations to include dimming the light in the work areas, as well as limiting computer time.

While the Veteran's service-connected disabilities are shown to impact the Veteran's ability to work, without confirmation of the Veteran's employment status, there is insufficient evidence to support a finding of unemployability due to the Veteran's service-connected disabilities. As such, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sarah B. Richmond, 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.