Citation Nr: 21013111 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-26 711 DATE: March 8, 2021 ORDER Entitlement to service connection for spinal stenosis, to include as secondary to service-connected left lower extremity disabilities, is dismissed. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left lower extremity disabilities, is denied. Entitlement to an initial disability rating in excess of 10 percent prior to October 16, 2019, and in excess of 30 percent on and thereafter, for service-connected migraine headaches is denied. Entitlement to a disability rating in excess of 20 percent prior to September 1, 2020, and in excess of 40 percent on and thereafter, for the service-connected left sural neuropathy and left tarsal tunnel syndrome is denied. FINDINGS OF FACT 1. In an August 2019 statement, the Veteran, through his attorney, withdrew his appeal as to the issue of entitlement to service connection for spinal stenosis. 2. The preponderance of the evidence is against a finding that the Veteran’s right knee condition was caused by, or is otherwise related to, his active service, or his service-connected left leg and left knee disabilities. 3. For the appeal period prior to October 16, 2019, the Veteran’s migraine headaches did not manifest in characteristic prostrating attacks occurring on an average once a month. 4. For the appeal period from October 16, 2019, the Veteran’s migraine headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. For the period prior to September 1, 2020, the Veteran’s neuropathy, left lower leg and foot, status post shrapnel wound was characterized by moderate, but no greater, incomplete paralysis. 6. For the period beginning September 1, 2020, the neuropathy, left lower leg and foot, status post shrapnel wound has been characterized by moderately severe, but no greater, partial paralysis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal as to the issue of entitlement to service connection for spinal stenosis are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205 2. The criteria for service connection for a right knee disability, to include as secondary to the service-connected left lower extremity disabilities, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to an initial disability rating in excess of 10 percent for migraine headaches, prior to October 16, 2019, and in excess of 30 percent on and thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.124a, Diagnostic Code (DC) 8100. 4. The criteria for entitlement to a rating in excess of 20 percent prior to September 1, 2020, and in excess of 40 percent from September 1, 2020 for the service-connected left sural neuropathy and left tarsal tunnel syndrome have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1989 to April 1992. He is the recipient of the Purple Heart and the Combat Infantryman Badge. During the course of this appeal, the Veteran’s claim for service connection of a left foot condition, to include based on aggravation of pre-existing pes planus, has been granted in full. No matter pertaining to this issue is no longer on appeal. The matters remaining on appeal were remanded by the Board in August 2018 for further development. The requested development has been completed, and the case has returned to the Board for adjudication. The August 2018 Board remand is incorporated herein by reference. Separately, the Veteran previously appealed the rating for the service-connected neuropathy of his left lower extremity. That issue was remanded by the Board in a June 2020 decision for further development and has since been returned for adjudication. The June 2020 Board remand is incorporated herein by reference. That appeal has been merged with the current appeal and will be addressed herein. Service Connection – Low Back In correspondence dated August 14, 2019, the Veteran, through his representative, withdrew his appeal for service connection of spinal stenosis. Accordingly, the Board accepts the Veteran’s withdrawal of the appeal as to this issue. Hence, there remains no allegation of error of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal, and it is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. Service Connection – Right Knee Initially, the Board notes that the Veteran first filed a claim for service connection of the bilateral knee conditions in June 2011. That claim was denied in a June 2012 rating decision, and that same month, the Veteran filed another claim specifically for a right knee condition. A July 2013 rating decision denied the claim, and the Veteran appealed. Because of the proximity of time from the June 2012 rating decision and the Veteran’s additional claim, and the fact that the Board has remanded this claim on its merits without addressing the issue of the previously denied claim, the Board finds that the issue of new and material evidence to reopen a claim is moot, as the Veteran has clearly been continuously prosecuting this claim since his initial filing in June 2011. As such, the Board will continue to consider this claim on the merits. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptoms after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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 a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In a June 2011 independent medical examination report it was indicated that the Veteran first injured his right knee in the mid 1990’s and reinjured his right knee in a 2010 motor vehicle accident. There was no discussion of cause or aggravation of a right knee condition due to his active service, or his left leg disability. On VA examination in June 2012, the Veteran reported a right knee injury and pain occurring after he started compensating for the left leg and following an injury in 1993 while playing basketball. He indicated his right knee issues occurred after he began working for the Postal Service as a mail carrier. He stated that his work as a mail carrier and a motor vehicle accident in 2010 aggravated his right knee. The examiner did not offer an etiology opinion. On VA examination in July 2012, the examiner’s report indicated that the right knee injury was not service related, and largely reiterated the information from the June 2012 examination. A September 2012 VA treatment note indicates that some of the Veteran’s right knee problems were due to overuse secondary to his left leg nerve injury. A December 2017 VA examination report indicates that the Veteran’s right knee was diagnosed with osteoarthritis in 2012 and exhibited limitation of motion, but offered an etiology opinion only of the left knee. On VA examination in October 2019, the Veteran asserted that his right knee pain was due to compensating for his left leg disability. He also reported that in 1993 he experienced an ACL tear in his right knee, requiring arthroscopic reconstructive surgery. The examiner noted that there were no complaints, diagnoses, or events involving the Veteran’s right knee during active service and found that his current residual signs or symptoms were due to the 1993 meniscectomy. The examiner opined that the claimed right knee condition was less likely than not incurred in, or caused by, the claimed in-service injury event or illness. There is no adequate evident diagnosis or clear clinical symptoms for the condition in the service medical records, and his current condition has a clear etiology that is less likely than not proximately due to the left lower leg shrapnel injury. While the Board acknowledges the September 2012 medical note indicating a possible connection between the Veteran’s right knee arthritis and his left leg disabilities, every other record available attributes his right knee condition to his 1993 ACL tear and 2010 motor vehicle accident, and not to his service-connected left lower extremity disabilities. The October 2019 examiner explained that the Veteran’s right knee has a clear etiology that is unrelated to his left leg. The Board finds the October 2019 opinion persuasive, and the September 2012 note is unsubstantiated and inadequate to overcome the wealth of evidence showing that the Veteran’s right knee disability is due to incidents separate from, and unrelated to, his active service—or to his service-connected left lower extremity disabilities. Thus, the-benefit-of-the-doubt does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49(1990). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine Headaches The Veteran contends that his service-connected migraine headaches warrant a disability rating in excess of 10 percent from the date of his claim, February 22, 2010, and in excess of 30 percent from October 16, 2019. The Board finds that higher ratings for service-connected migraines are not warranted. The Veteran’s migraine headaches are currently evaluated under 38 C.F.R. § 4.124a, DC 8100, which provides a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating for migraines with prostrating attacks averaging one in 2 months over last several months, and a 0 percent rating for less frequent attacks. In Johnson v. Wilkie, 30 Vet. App. 245 (2018), the United States Court of Appeals for Veterans Claims (Court) held that the criteria of DC 8100 are successive. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court held that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating.” In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. The phrase “completely prostrating” is defined as “completely lacking in vitality or will” and “powerless to rise.” See Johnson, 30 Vet. App. at 252. The Court has indicated this phrase means the headaches “must render the veteran entirely powerless.” Id. at 253. This differs from “characteristic prostrating” (required for a 30 percent rating), which means that the migraine attacks “typically produce powerlessness or a lack of vitality.” Id. Moreover, “prolonged” has been defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. “[P]roductive of severe economic inadaptability” has been defined as either “‘producing’ or ‘capable of producing’ severe economic inadaptability.” Id. VA treatment notes from March 2010 indicate the Veteran missed 4 days of work due to headaches. A similar note from June 2010 showed that he had 5 headaches the previous month, resulting in 3 missed days of work. In March 2012, the Veteran reported missing 5 days of work the previous month due to headaches. A VA treatment note from July 2013 shows that the Veteran complained of increasingly frequent headaches. Also, records throughout 2014 indicate the Veteran experienced headaches with migraine symptoms 3 to 4 times per month. Records from November 2015 show he reported increased headaches to about 6 per month with migraine symptoms lasting 9-24 hours. In 2016, the Veteran reported an improvement in his migraine occurrences with the help of medication, stating that in April 2016 his headaches had decreased from 6 times per month to 3 times per month and only lasting 4-5 hours with medication. November 2017 through October 2018, the Veteran reported experiencing migraine headaches with light sensitivity, sound sensitivity, bright spots, and nausea about 4-5 times per month, but he was still able to work. A private medical record from October 2017 indicated that the Veteran experienced throbbing headaches several times a week, interfering with his activities of daily living and causing nausea and light sensitivity. The note also stated that the headaches last several hours and occur at least three times per week, and make it difficult for the Veteran to communicate with family. On VA examination in October, 2019, the Veteran described his migraine symptoms as pulsating or throbbing head pain, localized to the right side of his head, worsening with physical activity. He also reported experiencing non-headache symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. His migraines typically last 1-2 days, occurring monthly with characteristic prostrating attacks. He was prescribed Topamax and Triptan. The examiner found no prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability, although the Veteran’s migraines impacted his ability to work in that he must avoid movements that would increase his pain and symptoms. During the appeal period prior October 2019, there is no evidence that the Veteran’s migraines were considered prostrating, despite experiencing several per month. Unfortunately, this precludes an assignment of a 30 percent rating, which requires evidence of characteristic prostrating attacks occurring on an average once a month over last several months. As such, the Veteran’s claim for a rating in excess of 10 percent for the period prior to October 16, 2019 must be denied. For the period from October 16, 2019, while there is evidence that the Veteran’s migraine symptoms impact his ability to work, there is no indication that he experienced very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which is required for a 50 percent rating. As such, the Veteran’s claim for a rating in excess of 30 percent from October 16, 2019 must be denied. Neuropathy Of The Left Lower Extremity In July 2015, Veteran filed a claim for an increased rating for his service-connected left sural neuropathy and left tarsal tunnel syndrome, which was rated at 20 percent disabled under DC 8520. During this appeal, the Veteran was granted a 40 percent rating from September 1, 2020. The Board will, thus, consider whether the Veteran’s left lower neuropathy warranted a rating in excess of 20 percent prior to September 1, 2020, and in excess of 40 percent on and thereafter. Under DC 8520, a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A private medical record dated August 2015 reflects a diagnosis of left sural neuropathy and left calf muscle denervation from shrapnel injury. The examiner noted normal gait and balance. On VA examination in November 2015, the Veteran’s left lower extremity neuropathy was manifested by moderate left lower numbness and paresthesias/dysesthesias. The examiner found no loss of muscle movement but did note decreased reflexes and sensation. The Veteran’s regular use of a prosthetic shoe with metal calf brace was noted, and the examiner determined there was moderate incomplete paralysis of the left sciatic nerve. VA treatment notes from November 2016 show that the Veteran reported that his neuropathy symptoms were stable. VA notes from December 2017 indicate that he took as-needed medication for his neuropathy, but that he was able to work. In a private treatment letter dated December 2017, the Veteran’s private physician opined that the Veteran’s left lower extremity neuropathy had contributed to weight gain. In correspondence also received in December 2017, the Veteran, through his representative, argued that his peripheral nerve condition had worsened since the November 2015 examination. The Veteran described increased symptoms of foot dragging, inability to run and limited ability to exercise—and argued that VA had failed to address the severity of his symptoms without his required brace. VA treatment notes from November 2018 indicate normal gait, but that the Veteran experienced numbness, tingling, and sometimes burning pain in the back of his left leg. In October 2019, the Veteran reported identical symptoms. In June 2020, a VA treatment provider indicated that the Veteran’s neuropathy was ongoing and varied in intensity. Pursuant to the June 2020 Board remand, on VA examination in September 2020, the examiner corrected and updated the Veteran’s left lower neuropathy diagnosis as left sural neuropathy and tarsal tunnel syndrome, left lower limb, for which the Veteran wears a prosthetic shoe with metal calf brace. The Veteran reported constant severe pain in the left lower extremity, with severe numbness, paresthesias and/or dysesthesias. On examination, the examiner found muscle atrophy (resulting in loss of knee extension, ankle flexion, and ankle dorsiflexion) as well as decreased sensation in the thigh, knee, lower leg, and foot. The examiner remarked that the Veteran had moderately severe incomplete paralysis of the left sciatic nerve and moderate incomplete paralysis of the left posterior tibial nerve. The Board finds that, prior to September 1, 2020, the Veteran’s left leg neuropathy did not warrant a rating in excess of 20 percent. Importantly, the November 2015 examination report clearly indicates that the Veteran’s sciatic nerve manifested in moderate incomplete paralysis, which correlates to a 20 percent rating under DC 8520. A higher rating of 40 percent is not appropriate unless there is moderately severe incomplete paralysis. While the Veteran argued that his condition had worsened, medical evidence of record prior to September 2020 shows that his symptoms were stable and did not indicate a worsening of foot dragging, or otherwise. As such, a higher rating is not warranted. For the period from September 1, 2020, the Board finds that a rating in excess of 40 percent is not warranted. While the Board is sympathetic to the Veteran’s severe pain and numbness, among other symptoms, a higher rating of 60 percent is not available without evidence of severe incomplete paralysis, which was not found on examination. Additionally, while the Veteran has some muscular atrophy with a loss of .5cm on the left side, his incomplete paralysis is only considered (CONTINUED ON NEXT PAGE) moderately severe, which aligns with a 40 percent rating. Importantly, severe incomplete paralysis has not been shown. Accordingly, a rating in excess of 40 percent is not warranted from September 1, 2020, and this aspect of the appeal is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.