Citation Nr: 21011852 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-16 869 DATE: March 2, 2021 ORDER Entitlement to an initial compensable evaluation for tension headaches is denied. Entitlement to service connection for a right knee disability as secondary to service-connected left knee chondromalacia is denied. FINDINGS OF FACT 1. The Veteran has characteristically prostrating headaches less frequently than one in two months over the last several months. 2. The preponderance of the evidence is against finding that the Veteran's right knee disability was incurred in, caused by, or a result of his service, to include as secondary to his service-connected left knee chondromalacia. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for tension headaches were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for service connection for a right knee disability were not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the US Marine Corps from January 2009 to October 2012. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from April 2014 and January 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In May 2020, the Board remanded the claim for further development. The Veteran had testified to a worsening of his tension headaches in the past six to eight months. Therefore, a new VA examination was necessary to ascertain the current severity of the condition. An addendum opinion with regard to his right knee disability was also sought. The examiner was asked to specifically address the service treatment record notations to chronic pre-patellar bursitis in service and provide a nexus opinion. Finally, a VA examination regarding service connection for his claimed respiratory condition was found necessary per McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA examinations related to all three claims were received in July and August 2020 as well as updated VA treatment records. Therefore, there was substantial compliance with the May 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2020 rating decision, the Veteran was granted service connection for his claimed respiratory condition effective July 29, 2014. Therefore, this claim is no longer before the Board. 1. Entitlement to an initial compensable evaluation for tension headaches is denied. Applicable Law and Regulations The Veteran's migraine headaches are evaluated pursuant to DC 8100. Under DC 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on average once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Though the Diagnostic Code does not provide a definition for “prostrating,” prostration is defined as “extreme exhaustion or powerlessness.” Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). Additionally, the term “productive of severe economic inadaptability” is also not defined in veterans' law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 44647 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating). Words such as “very frequently” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Analysis The Veteran currently has an initial noncompensable rating for tension headaches effective October 20, 2012, under DC 8100. The Veteran asserts entitlement to a compensable rating for his tension headaches. In January 2015, the Veteran reported in his notice of disagreement that he experienced tension headaches once a month or more. In March 2020, he testified to worsening headaches in the last six to eight months. On average, he experienced headaches about three times a week. He had headaches at work once or twice a week, which affected his ability to concentrate. He reported working through a headache and denied needing to lie down in a dark room. In September 2020, the Veteran submitted a migraine log. He had tracked his migraines from March 2020 through September 2020. He reported leaving work due to the severity of his headache once a month from April 2020 to August 2020. The Veteran reported the severity of his headaches fluctuated. He continued to describe a pulsating pain. On occasion he had to lie down somewhere at work or go home entirely to ease his pain. The Veteran is competent to report his medical history and symptomatology, including pain. Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. However, his opinion was not accorded greater probative weight than the VA examiner regarding a complex medical question. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). During a March 2014 VA examination, the Veteran reported a throbbing or pulsating frontal head pain. He reported feeling like his eye was popping out due to the pain. His headaches would last about one and a half hours and were occurring two times a month. He denied nausea, vomiting, photophobia, and phonophobia. The examiner found the duration of his typical head pain was less than one day and prostrating attacks of headache pain were not applicable. However, his headache condition impacted his concentration at work. The Veteran underwent another VA examination for his headaches in January 2015. He was diagnosed with post-concussive headaches. He reported experiencing a pulsating or throbbing head pain on both sides of his head. The examiner found the duration of his typical head pain was less than one day. The Veteran had less frequent characteristic prostrating attacks over the last several months. This condition did not impact his ability to work. The Veteran’s post-service treatment records showed him complaining of daily fatigue and headache in June 2017. He reported nodding off while working at the computer and was diagnosed with hypersomnia. A sleep study in November 2019, did not exhibit abnormal enough findings to recommend use of a CPAP. In a July 2020 disability benefits questionnaire (DBQ), the Veteran was diagnosed with tension headaches. He reported worsening headaches since 2019. He had headaches about three times a week. He experienced a throbbing pain on the right, left, and front of his head. His headaches usually lasted an hour but could last for several hours. He denied nausea, vomiting, photophobia, phonophobia, and vision changes. The July 2020 examiner found the duration of his typical head pain was less than one day. The Veteran had less frequent characteristic prostrating attacks over the last several months. There was no evidence he had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe chronic inadaptability. The Veteran could perform light work. His headaches occasionally affected his ability to focus and concentrate. Usually, he could take Advil and work through the pain, but they could impact his productivity at times. Performing strenuous activities would exacerbate a headache. The Board concludes that the Veteran is not entitled to an initial compensable rating for tension headaches. The Veteran reported occasionally needing to lie down somewhere at work or go home entirely. There is little evidence of treatment apart from taking over the counter pain medications. VA examiners found the Veteran had characteristic prostrating attacks less frequent than once in two months over the last several months. Based on the evidence of record, a noncompensable rating adequately portrays his functional impairment due to tension headaches since October 20, 2012. 2. Entitlement to service connection for a right knee disability as secondary to service-connected left knee chondromalacia is denied. Applicable Law and Regulations Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 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) 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). Under 38 C.F.R. § 3.310, service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing either the current non-service-connected disability was proximately due to or the result of a service-connected disability or was aggravated beyond its natural progress by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448; Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background The Veteran’s December 2008 enlistment examination contained normal clinical findings. In January 2009, his service treatment records showed left knee swelling. By September 2009, he was complaining of left knee pain and swelling on the kneecap. He indicated no specific injury other than frequently climbing off and on armored vehicles. His pain and swelling were found consistent with pre-patellar bursitis. Chronic pre-patellar bursitis was frequently noted in his service treatment records. At his September 2012 separation examination, the Veteran denied arthritis, rheumatism, or bursitis; swollen or painful joints; impaired use of the arms, legs, hands, or feet; and knee trouble. During an April 2014 VA examination, he was diagnosed with bilateral chondromalacia patella and right lateral quadriceps tendinopathy with cyst formation. He could not recall a specific injury to his knees but reported chronic popping and cracking sounds. The right knee had developed a bump that was now tender and visible when the knee was bent. In a January 2015 VA examination, the Veteran was diagnosed with right knee chondromalacia patella and lateral quadricep tendinopathy. Physical examination found mild tenderness only upon palpating a barely visible, very firm, slightly raised one-centimeter subcutaneous nodule at the suprapatellar lateral quadricep tendon. He had evidence of crepitus with active and passive extension of the knee without pain as well as pain with flexion. The January 2015 examiner opined it was less likely than not that the diagnosed right knee chondromalacia patella with lateral quadriceps tendinopathy and cyst was related secondarily to Veteran's service-connected left knee chondromalacia patella. The examiner noted the Veteran did not begin to report right knee pain until after his discharge from service while he was working as a civilian contractor. His reported gait alteration to favor the left knee was minimal and not sufficient to cause him altered joint mechanics or physiologic stress upon the right knee resulting in the current diagnosis. There was no evidence of treatment for the right knee after his discharge from service. The examiner found it was more likely the right knee condition developed independently due to vigorous physical activity post service. At the Veteran’s March 2020 hearing, he testified that he did not notice a problem with the right knee until after his discharge. He could not recall a knee injury after service that could explain this problem. He reported that during a VA visit the cyst was found. However, the cyst was not treated in any way. He testified he was told the right knee issue could possibly be related to his left knee issue because he had altered his gait to favor the left knee putting more pressure on the right knee. The Board remanded the right knee claim in May 2020 for an addendum opinion. The Veteran’s service treatment records noted chronic patellar bursitis. An appropriate examiner was asked to address this notation and opine as to whether it was at least as likely as not that the Veteran’s right knee disability was related to his service. VA post-service treatment records note no gait abnormality in June 2017, October 2018, and September 2019. There is no evidence of treatment for the right knee. In an August 2020 DBQ for the right knee, a VA physician opined it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran’s service treatment records discussed a left knee condition and made no reference to the right knee in service. His April 2011 post-deployment health assessment (PDHA) was negative for stiff, swollen, or painful joints. His separation examination was negative for a knee condition and there was no evidence he sought out care until April 2014. In September 2020, the Veteran reported early in his service he injured his left knee. He favored the left leg to ease his pain and over time developed a painful lump on the right knee. He never went to sick call to have it checked out. He pushed through the pain because he knew the recommended treatment for almost every injury was to ice it and take aspirin. Analysis The Veteran contends his right knee disability is related to his active service, to include as secondary to his service-connected left knee chondromalacia. As the record shows a current diagnosis of right knee chondromalacia of the patella with lateral quadricep tendinopathy and cyst formation, the first element of service connection is satisfied. The Veteran’s left knee chondromalacia is a service-connected disability. The January 2015 VA examiner opined it was less likely than not that the diagnosed right knee chondromalacia patella with lateral quadriceps tendinopathy and cyst was related secondarily to Veteran's service-connected left knee chondromalacia patella. The examiner noted the Veteran did not begin to report right knee pain until after his discharge from service while he was working as a civilian contractor. His reported gait alteration to favor the left knee was minimal and not sufficient to cause him altered joint mechanics or physiologic stress upon the right knee resulting in the current diagnosis. There was no evidence of treatment for the right knee after his discharge from service. The examiner found it was more likely the right knee condition developed independently due to vigorous physical activity post service. During an August 2020 DBQ for the right knee, a VA physician opined it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran’s service treatment records discussed a left knee condition and made no reference to the right knee in service. His April 2011 PDHA was negative for stiff, swollen, or painful joints. His separation examination was negative for a knee condition and there was no evidence he sought out care until April 2014. The probative evidence of the January 2015 and August 2020 VA examinations weighed against finding the Veteran’s right knee disability was related to his service. The examiners relied on sufficient facts and data as well as providing a rationale for their opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In the absence of a nexus, the claim for service connection for the Veteran's right knee disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.