Citation Nr: 21010273 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-03 372A DATE: February 24, 2021 ORDER Entitlement to an initial 10 percent rating for service-connected aseptic genicular effusion of the right knee, status post arthroscopy (right knee disability), is granted. Entitlement to a compensable rating prior to January 15, 2013, and to a rating greater than 10 percent thereafter for service-connected allergic rhinitis is denied. Entitlement to an initial 30 percent rating for service-connected migraine headaches is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right breast mass is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. FINDINGS OF FACT 1. For the entire pendency of the claim, the Veteran’s right knee disability has been manifested by a painful joint impacting functional ability; limitation of flexion of the joint to 30 degrees or less has not been shown. 2. Prior to January 15, 2013, a compensable rating is not warranted for allergic rhinitis because the Veteran did not have nasal obstructions; a rating greater than 10 percent is not warranted from January 15, 2013, because the Veteran has not had nasal polyps. 3. For the entire pendency of the claim, the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for the right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259-5260. 2. The criteria for a compensable rating prior to January 15, 2013 and to a rating in excess of 10 percent thereafter for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6522. 3. The criteria for an initial 30 percent disability rating for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to February 2005. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded these matters for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an initial 10 percent rating for the service-connected right knee disability is granted. The Veteran seeks an increased rating for her service-connected right knee disability, which is rated noncompensable prior to January 15, 2013, and 10 percent thereafter under 38 C.F.R. § 4.71a, DC 5259-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that semilunar cartilage removal (DC 5259) was rated under the criteria for limitation of leg flexion (DC 5260). Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under DC 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, DC 5260. 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. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; 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 this case, the Board finds that an initial rating of 10 percent is warranted for the right knee disability based on the painful right knee documented in the November 2004 examination and report of medical history (RMH) form completed for separation from service. The Veteran indicated on her RMH that she had knee trouble and swollen and painful joints. The clinician noted right knee pain. The examination report shows the clinician observed right knee pain. As such, the Veteran is entitled to the minimal compensable rating for the right knee, which is 10 percent. 38 C.F.R. § 4.59. The Board considered whether a rating greater than 10 percent is warranted for any period on appeal but finds that the preponderance of the evidence is against the claim. Specifically, the medical evidence, including the VA treatment records, June 2013 VA examination report, January 2020 VA examination report, and October 2020 examination report, do not show that the Veteran’s right knee flexion has been limited to 30 degrees or less. At its worst, the October 2020 examiner estimated that flexion would be limited to 90 degrees during a flare-up, which is far greater motion than the limitation required for an increased rating. VA and private treatment records fail to show that the Veteran’s right knee flexion was limited to 30 degrees or less. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and swelling. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, such as limitations with standing and working out, the degree of additional limitation reflected by her statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Further, the October 2020 examiner specifically addressed her reported flare-ups and resulting functional limitations, and the examiner estimated that her flexion would be limited to 90 degrees. The examiner also estimated that her flexion would be limited to 100 degrees after repetitive use. The Board has considered the other DCs 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). In this case, the evidence does not show that the Veteran’s right knee has been ankylosed (DC 5256), manifested as recurrent subluxation or lateral instability (Diagnostic Code 5257), manifested as dislocated cartilage (DC 5258), resulted in limitation of extension (DC 5261), manifested as impairment of the tibia and fibula (DC 5262), or manifested as genu recurvatum (DC 5263). The Board has considered whether the Veteran is entitled to separate ratings under DC 5259 and DC 5260. However, the Veteran’s symptom of pain resulting in limitation of motion cannot be considered under both codes due to the rule against pyramiding, or compensating the same symptoms more than once. In conclusion, the Board finds that the Veteran is entitled to an initial 10 percent rating for the right knee disability under 38 C.F.R. § 4.71a, DC 5259-5260, and to this extent, the appeal is granted. The preponderance of the evidence is against the claim for a rating in excess of 10 percent for the right knee disability for any period during the pendency of the claim. In denying such a 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. 2. Entitlement to a compensable rating prior to January 15, 2013 and to a rating greater than 10 percent thereafter for allergic rhinitis is denied. The Veteran seeks increased ratings for her allergic rhinitis, which is rated under 38 C.F.R. § 4.97, DC 6522. While DC 6522 does not provide for a noncompensable disability evaluation, 38 C.F.R. § 4.31 provides for zero percent evaluations in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code and the requirements for a compensable evaluation are not met. Under DC 6522, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent evaluation is warranted for allergic or vasomotor rhinitis with polyps. See 38 C.F.R. § 4.97. A 30 percent evaluation is the maximum rating permitted under DC 6522. During a June 2005 VA examination, the Veteran described a history of nasal congestion, rhinorrhea, itchy eyes, and general urticaria since 2003. Her symptoms worsened with exposure to pollen, dust, and certain colognes and perfumes. She managed her symptoms with over-the-counter antihistamines. On examination, her sinuses were nontender and her nose was normal. The Veteran had a VA examination in January 2013. She reported having post-nasal drip and drainage, nasal congestion, itchy nose, and facial pressure. Her symptoms worsened when she was around pets and with changes in season. The examiner observed that the Veteran had greater than 50 percent obstruction in the nasal passage on both sides. She did not have complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or granulomatous conditions. During a January 2020 examination, the Veteran reported associated cough, wheezing, and headaches. She stated that the condition affected her ability to workout and perform activities of daily living. The examiner did not observe any obstruction of either nasal passage or polyps. She had permanent hypertrophy of the nasal turbinates. During an October 2020 examination, the Veteran continued to have greater than 50 percent obstruction in the nasal passage on both sides. No other symptoms were reported or observed. The Board has considered the evidence of record, but finds that a compensable rating is not warranted for her allergic rhinitis prior to January 15, 2013, because the evidence does not show nasal obstructions or polyps. Further, a rating greater than 10 percent is not warranted from January 15, 2013, because the Veteran is not shown to have nasal polyps. The Board has considered the Veteran’s January 2021 argument indicating that her symptoms impact her life at a greater rate than currently assigned; however, she has presented no other medical or lay evidence in support of her claim. Accordingly, the claim must be denied. 3. Entitlement to an initial 30 percent rating for migraine headaches is granted. The Veteran seeks increased ratings for her migraine headaches, which are rated 10 percent disabling prior to January 12, 2013, and 30 percent disabling thereafter 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 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. To receive a 50 percent disability rating, which is the maximum provided under DC 8100, there must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. 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 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 contains 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). In this case, the Board finds that a 30 percent rating is warranted for the entire pendency of the claim for the Veteran’s migraine headaches. Service treatment records show that from at least June 2004 through November 2004 the Veteran was treated once per month for debilitating migraine headaches. During a June 2005 VA examination, the Veteran described her migraines and reported that they lasted from 12 hours to 2 days and occurred 3 to 4 times per month. She occasionally had to miss work. The examiner stated that the headaches could be debilitating. While the examiner did not specifically state that the Veteran had migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months, the Veteran’s report of debilitating migraines several times per month with occasional missing of work as well as the service treatment records indicating monthly treatment for migraines in 2004 show her disability is more closely encompassed under the criteria for a 30 percent rating. A rating greater than 30 percent is not warranted for migraine headaches for any period during the pendency of the claim as the Veteran’s migraines have not resulted in very frequent completely prostrating and prolonged attacks productive or capable of producing severe economic inadaptability. As noted above, in June 2005, the Veteran reported that she occasionally missed work. She did not report that she had migraines of the severity to result in severe economic inadaptability. During a January 2013 examination, the Veteran described her headaches as pulsating or throbbing head pain, pain between her eyes, and occasional face numbness. Her headaches were associated with nausea, sensitivity to sound, changes in vision, sensory changes, and tender scalp and face to palpation. Her migraines lasted 1 to 2 days and were felt on the right side of her head and occasionally between her eyes. The Veteran had characteristic prostrating attacks of migraine headache pain once per month. She did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain or have characteristic prostrating attacks of non-migraine pain. During a January 2020 examination, the Veteran reported pressure between her eyes, mild nausea, and fatigue. Her migraines made it difficult to read and write. The examiner documented sensitivity to light and changes in vision during migraines. The Veteran’s migraines lasted less than a day and manifested as characteristic prostrating attacks of pain once per month. She did not have very prostrating and prolonged attacks of migraine or non-migraine headache pain productive of severe economic inadaptability. During an October 2020 examination, the Veteran reported migraines with sensitivity to light and sound. She had sharp pains on both sides of her head. The pain limited her ability to perform activities of daily living. The migraines lasted 1 to 2 days. During episodes, she had to lay down in a dark and quiet room. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. She did not have very prostrating and prolonged attacks of migraine or non-migraine headache pain productive of severe economic inadaptability. The Board has reviewed the VA and private treatment records; however, none indicate that the Veteran’s headaches have been on such severity to result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Moreover, the Veteran has not submitted any lay statements asserting that her migraines resulted in severe economic inadaptability. Considering all relevant evidence of record, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the entire appeal period, corresponding to the criteria for a 30 percent rating under 38 C.F.R. § 4.124a, DC 8100. To the extent that a 30 percent rating for migraines is warranted prior to January 12, 2013, the appeal is granted. To the extent that a rating greater than 30 percent is not warranted at any time during the pendency of the claim, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for a left knee disability. She attended a VA examination in October 2020. The examiner found no signs, symptoms, or objective findings of a left knee disability. However, after finding that the Veteran did not have a left knee disability, the examiner stated that the Veteran’s claimed left knee disability is due to the service-connected right knee disability. The examiner did not indicate specifically what left knee disability or symptoms were attributable to the right knee disability. On remand, an addendum opinion must be obtained clarifying whether the Veteran has had a left knee disability at any point since her separation from service, to include pain resulting in functional impairment, and if so, whether the left knee disability or pain are due to service or due to or have been aggravated by the service-connected right knee disability. 2. Entitlement to service connection for a right breast mass is remanded. The Veteran seeks service connection for a mass in the right breast. Service treatment records show that in January 2005, the Veteran had a palpable mass in the right breast and the provider indicated that a cyst needed to be ruled out. VA treatment records dated in January 2008 and May 2013 show the Veteran did not have masses in the breast. A January 2018 treatment record shows the Veteran had diffusely lumpy breasts but no palpable masses or axillary masses. Private treatment records from P.W. indicate that in August 2019 the Veteran had a few benign calcifications and scattered, small, smoothly marginated nodules in each breast compatible with a benign process. An examination was conducted in October 2020 and the examiner provided a negative nexus opinion; however, the examiner did not address the notation in service or the VA or private treatment records showing breast abnormalities. Accordingly, the opinion report is inadequate for rating purposes. On remand, an addendum opinion should be obtained that identifies the right breast abnormalities present during the pendency of the claim and indicates whether the conditions, to include to include whether the lumps, calcifications, or nodules, are related to service, to include the palpable mass noted in January 2005. 3. Entitlement to service connection for a gastrointestinal disability is remanded. The Veteran seeks service connection for a gastrointestinal disability, also claimed as abdominal pain. Service treatment records show treatment for stomach pain, gastroenteritis, and possible appendicitis. Records also show that the Veteran was treated on several occasions for right flank pain, right lower abdominal pain, and right lower quadrant pain during service. During the June 2005 examination, the Veteran reported a history of sharp lower abdominal pain that began in the flanks and radiated to the midline. The pain lasted seconds and occurred daily. She noted that she had been hospitalized in Germany for abdominal pain but that they were unable to determine the cause of her symptoms. The examiner observed mild abdominal discomfort in the right and left lower quadrant that was non-radiating. The examiner stated that the Veteran’s symptoms were not consistent with gastroenteritis and he referred her to a specialist. An appointment with the specialist was ordered but the Veteran failed to report for the examination. In her notice of disagreement and as acknowledged in the August 2018 Board remand, the Veteran indicated that she was unable to attend the examination due to a temporary relocation for work. The Board ordered a remand to schedule an examination with a gastroenterologist. An examination was conducted in October 2020; however, the examination report is not of record. An opinion report is of record, but it was not completed by a gastroenterologist as ordered by the Board. The opinion report indicates that the Veteran had gastrointestinal symptoms in June 2005 but that they were not related to her in-service treatment of gastroenteritis as there was no chronicity and continuation of the disability. However, the examiner did not identify the underlying pathology of her abdominal pain documented in June 2005 or address whether the pain was related to the other documented instances of right flank pain, right lower quadrant pain, and/or abdominal pain treated during service. Accordingly, the opinion report is inadequate for rating purposes. On remand, an examination must be conducted by a gastroenterologist or other specialist to determine whether the Veteran’s abdominal pain documented in the June 2005 VA examination report, right flank pain documented in a March 2018 VA treatment record, epigastric pain documented in a February 2019 private treatment record from NOVA; or any other disability manifesting as abdominal pain is related to or manifested during service. The matters are REMANDED for the following action: 1. Associate with the claims file VA treatment records dated since March 2020. 2. Ask the October 2020 examiner or another qualified clinician to provide an addendum opinion addressing the etiology of the Veteran’s left knee disability. If the opinion cannot be provided without examining the Veteran, then an examination must be scheduled. After reviewing the evidence, the examiner must indicate whether the Veteran has a left knee diagnosis or whether she has a painful left knee resulting in functional impairment. If so, then the examiner must provide the following opinions: (a) For each disability diagnosed, please opine as to whether it is at least as likely as not ( 50 percent probability or greater) that such disability is related to the Veteran’s military service, to include (but not limited to) notations of left knee pain and the findings on an October 2002 bone scan suggesting post-infectious soft tissue related periosteal reactions or arthritis. (b) For each disability diagnosed, please opine as to whether it is at least as likely as not ( 50 percent probability or greater) that such disability was caused by the Veteran’s service-connected right knee disability. (c) For each disability diagnosed, please opine as to whether it is at least as likely as not ( 50 percent probability or greater) that such disability was aggravated by the Veteran’s service-connected right knee disability. The examiner is reminded that joint pain resulting in functional impairment constitutes a disability for VA rating purposes. The examiner must provide separate opinions addressing secondary causation and aggravation. Each opinion must be supported with rationale. 3. Ask the October 2020 examiner or another qualified clinician to provide an addendum opinion addressing the etiology of the Veteran’s right breast disability. If the opinion cannot be provided without examining the Veteran, then an examination must be scheduled. For all abnormalities of the right breast, to include documented lumps, benign calcifications, and nodules documented in VA and private treatment records, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the condition manifested during or is otherwise related to service, to include the palpable lump documented in January 2005. A rationale must be provided in support of each opinion. 4. Schedule the Veteran for an examination with a gastroenterologist or other appropriate specialist to determine the etiology of her gastrointestinal disorder, also claimed as abdominal pain. The examiner must be provided access to the electronic claims file and indicate review of the file in the examination report. (a) Please diagnose all gastrointestinal disabilities, to include identifying the underlying pathology of the Veteran’s reported abdominal pain. The examiner should specifically address the symptoms noted in the June 2005 VA examination report. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses do not, or no longer apply, the examiner must explain why, citing to the pertinent diagnostic criteria. The examiner should specifically consider and discuss the significance of the notations of abdominal pain throughout the record. (b) For each disability diagnosed, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability is related to the Veteran’s military service, to include her in-service treatment of stomach pain, gastroenteritis, possible appendicitis, right flank pain, right lower abdominal pain, and right lower quadrant pain. In providing the opinion, the examiner must address the abdominal pain documented in the June 2005 VA examination report, right flank pain documented in a March 2018 VA treatment record, epigastric pain documented in a February 2019 private treatment record from NOVA, and any other complaint or diagnosis of abdominal pain and/or gastrointestinal disorder present since 2005. Each opinion must be supported by rationale. If any opinion cannot be provided, the examiner must explain why this is so. 5. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and her representative a supplemental statement of the case and allow an appropriate period for response. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.