Citation Nr: 21025830 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-45 691 DATE: April 29, 2021 ORDER Entitlement to a separate rating of 20 percent, but not higher, for a left knee disability (characterized as left knee patellofemoral pain syndrome), is granted. Entitlement to a separate rating of 10 percent, but not higher, for left knee instability, is granted. Entitlement to a rating of 50 percent, but no higher, for headaches is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability has been manifested by pain, joint locking, and swelling, but not actual or functional flexion limited to 30 degrees; actual or functional extension limited to 10 degrees; ankylosis; impairment of the tibia and fibula; or genu recurvatum or additional functional loss. 2. The Veteran’s left knee disability has manifested in slight instability for which he has been prescribed a brace. 3. The evidence is evenly balanced as to whether the Veteran has headaches which are characterized by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate rating of 20 percent for a left knee disability manifested by “locking” have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5258. 2. The criteria for entitlement to a separate rating of 10 percent for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59 Diagnostic Code 5257. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a 50 percent rating, but no higher, for a headache condition have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1996 to July 1997; December 2003 to February 2005; May 2007 to June 2008; March 2010 to February 2012; October 2012 to September 2013; and from January 2014 to September 2015. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision. The appeal was properly perfected. See July 2016 Notice of Disagreement; July 2017 Statement of the Case; and August 2017 VA Form 9. In January 2021, the Veteran testified before the undersigned in a video conference hearing. A copy of the hearing transcript has been associated with the claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary in order for a rating to accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.”). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to a rating in excess of 10 percent for a left disability, to include consideration of any separate ratings. The Veteran seeks an increased rating for his left knee disability, characterized as left knee patellofemoral pain syndrome and currently rated as 10 percent disabling under Diagnostic Code 5260. Knee disabilities are generally rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion, while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. Here, higher or separate ratings are not available under 5256, 5259, 5262, or 5263 as the Veteran did not have ankylosis, removal of semilunar cartilage, malunion of the tibia and fibula, or genu recurvatum at any point during the appeal period. Also, as an initial matter the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. However, the new rating criteria are not applicable prior to its effective date of February 7, 2021. For rating the knees, changes were specifically made to DCs 5257 and 5262. Additionally, changes were made to DC 5010 for arthritis and DC 5055 for total knee replacement. Thus, both the old and new rating criteria will be analyzed by the Board for the Veteran’s ratings. The Veteran was afforded a VA knee examination in May 2017. The Veteran reported that his knee hurts, pops, and clicks. He also reported that he had been told that his knee was “bone on bone.” The Veteran reported flare ups of the knee and difficulty bending. The Veteran did not report any functional loss or functional impairment. The Veteran exhibited normal range of motion in the left knee, and there was no evidence of pain with weight bearing, localized tenderness, or crepitus. Muscle strength testing was normal, and no muscle atrophy was noted. There was no ankylosis, and joint stability testing was normal. The examiner indicated no history of recurrent subluxation or lateral instability. No functional impact was noted. In a September 2018 VA treatment note, the Veteran presented with complaints of left knee pain. The Veteran reported that he was given injections with no prolonged relief. He also reported that he had pain with climbing and with stairs. The clinician noted that the Veteran had full range of motion. The clinician also stated that the Veteran did not have instability, but that his left patella popped with range of motion. In another September 2018 VA treatment note, the Veteran reported that his left knee pain worsened with weight bearing, and he stated that he could not run like he used to. The Veteran also reported that he felt instability and that his knee had buckled once or twice over the past year. The Veteran was recommended a brace. During a January 2021 hearing, the Veteran testified that his knee buckled and gave out on him and, as a result, he avoids taking the steps. The Veteran also testified that he avoids long drives and has to often pause, stretch, and shake his knee for relief. The Veteran also stated that he used a medically prescribed knee brace to ambulate. The Veteran further stated that his knee locks up and stiffens, referring to it as “dead-legging,” on occasion when walking, sitting, and with prolonged use. The Veteran also noted that he uses a cold press and heating pad and has been given shots for relief. The Veteran also testified that once to twice per week, his knee swells up. The Veteran’s remaining VA treatment records indicate ongoing complaints of knee pain but do not address the symptoms associated with that pain which the Board could use to evaluate this disability. Moreover, range of motion was only assessed by VA examination. As noted, the Veteran’s left knee disability is currently rated as 10 percent disabling under based on the noncompensable painful motion of his left knee under 38 C.F.R. § 4.59. Based on the above, the Board finds that a 20 percent rating is warranted for the Veteran’s left knee disability under Diagnostic Code 5258 based on pain, swelling, and locking of the left knee. 38 C.F.R. § 4.71a, DC 5258. Under DC 5258, a 20 percent rating is warranted for dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion. Here, as also noted in September 2018 VA treatment records and January 2021 hearing testimony, the Board acknowledges the Veteran’s regular reports of locking of his left knee. Although there was no evidence of dislocated semilunar cartilage or effusion in the May 2017 VA examination report, the Board finds the Veteran’s testimony to be credible. As this is the maximum schedular rating assigned to DC 5258, the Board finds that a higher rating is not warranted. A higher rating is not available under Diagnostic Code 5260, for limitation of flexion, as a 20 percent rating requires knee flexion limited to 30 degrees or less. During the entire period on appeal, the Veteran’s flexion was limited at most to 140 degrees. At no time did the Veteran exhibit or report limitation of flexion to 30 degrees or less. Even with consideration of pain complaints, the Veteran was able to flex his knee far beyond 30 degrees. Accordingly, a higher rating is not available under Diagnostic Code 5260. 38 C.F.R. § 4.71a, DC 5260. In addition, neither a higher rating nor a separate rating is available under 5261 because the Veteran exhibited full extension at each VA appointment and medical examination. The Board acknowledges the Veteran’s testimony that he experienced difficulty in bending his left leg. However, objective evidence, including the May 2017 VA examination report shows that the Veteran had normal extension to 0 degrees. The Board finds that the preponderance of the evidence weighs against a higher or separate rating for the Veteran’s left knee disability based on limited extension. 38 C.F.R. § 4.71a, DC 5261. The Board notes that there is no evidence of ankylosis, genu recurvatum or tibia/fibula impairment, thus, ratings under Diagnostic Codes, 5256, 5262, and 5263 are not warranted. 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. In addition to the above, the Board has considered whether a separate rating is warranted for instability of the knee. Under the old rating criteria, DC 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA 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.” See 38 C.F.R. § 4.6. Under the new rating criteria for a recurrent subluxation of instability of the knee, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. Finally, a 30 percent rating is warranted for a disability manifest as unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. For patellar instability of the knee, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Id. And a 30 percent rating is applied for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Instability test results noted in the May 2017 VA examination report were negative for instability. When weighing the evidence to determine whether there is lateral instability, objective medical evidence is not automatically more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 353 (2018). On balance, VA treatment records and testimony contain complaints that the Veteran’s knee buckled, gave out, and locked. Specifically, and as noted in September 2018 VA treatment records, the Veteran stated that his knee had buckled and popped once or twice over the past year. The Veteran also reported using a brace for support. Additionally, during the January 2021 hearing, the Veteran testified that his knee had given out on him and that it pops and that he has difficulty with maneuvering up and down stairs. Some of the Veteran’s reports of instability were made for the purpose of receiving medical treatment and therefore are considered credible. Notably, his testimony remained consistent with the reports that he gave VA clinicians. Therefore, despite the absence of medical findings on the VA examination, the Board resolves all reasonable doubt in favor of the Veteran and finds that a separate 10 percent rating under the old criteria for slight left knee instability is warranted and is most favorable to the Veteran. 38 C.F.R. § 4.71a, DC 5257. A higher rating is not warranted as the evidence of record is not indicative of moderate/severe instability and there is no evidence of a sprain, incomplete ligament tear, repaired complete ligament tear causing persistent instability, or surgical repair. With regard to functional loss, the Board notes that the Veteran’s 20 percent rating encompasses his painful motion and symptoms from repetitive use, and he has not demonstrated any other additional symptoms that would warrant additional compensation based on functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59. 2. Entitlement to a compensable rating for migraine headaches. The Veteran’s headaches have been assigned a noncompensable rating under DC 8100. Under DC 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran contends that his service-connected headaches warrant a compensable rating. After reviewing the record, the Board agrees with the Veteran’s contention and finds that a higher rating is warranted. In so finding, the Board notes the Veteran’s March 2016 VA examination where the Veteran reported that following his 2004 in-service head injury, he has experienced recurrent left sided headaches. The Veteran described the headaches as a squeezing pain on the left side of his head and face. The Veteran’s symptoms included constant head pain and pain localized to one side of the head, and the pain worsened with physical activity. The Veteran also experienced non-headache symptoms, to include nausea and sensitivity to light. The Veteran’s headaches lasted one to two days, and he experienced characteristic prostrating attacks of migraine headache pain less than once every two months. The examiner also noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran’s headache condition did not impact his ability to work. In a May 2017 VA examination, the Veteran reported that he has had headaches off and on due to repeated in-service head trauma. The Veteran’s symptoms included constant head pain and pain localized to one side of the head. The Veteran’s non-headache symptoms associated with headaches included nausea and sensitivity to light. The Veteran’s headaches lasted one to two days. The examiner noted that the Veteran did not experience characteristic prostrating attacks of migraine/non-migraine headache pain and that his headache condition did not impact his ability to work. A November 2018 VA treatment note reveals that the Veteran experienced headaches every few days and that lasted all day. The Veteran described symptoms of throbbing pressure, visions flashes, and dry heaves. The Veteran stated that the headaches resolved with rest and time. The Veteran also reported that his prescribed medication helped with the headaches, but increased sleepiness and made him feel “like in a fog.” A February 2020 VA treatment note reveals that the Veteran experienced weekly headaches. At the time of treatment, the Veteran stated that he was not taking his headache medication because of his job as a driver. A September 2020 VA treatment note reveals that the Veteran had two headaches a day. At the time of treatment, the Veteran stated that he was not taking headache medication. In his January 2021 hearing, the Veteran testified that he has bad headaches approximately once every two weeks and that they last a half an hour to hours. The Veteran further described the headaches as a searing pain, which require him to “shut everything down;” turn off the lights; reduce sound; retreat to a dark, quiet place, and use a cool washcloth to reduce the pain. The Veteran also reported that his headaches have caused him to pull over on the side of the road when driving. The Veteran also testified that he was prescribed medication but noted that such medication caused interference with his job. Considering the above and remaining evidence, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran’s headaches more closely approximate the criteria for a 50 percent rating under DC 8100 throughout the appeal period. The Board finds credible and probative the Veteran’s statements that demonstrate that he has experienced frequent prostrating headaches with prolonged attacks that are productive of severe economic inability. To this end, although it was noted in his May 2017 VA examination that the Veteran did not have prostrating headaches, the examiner noted that the Veteran’s headaches were constant and lasted one to two days. Moreover, the question of whether the symptoms meet the relevant criteria is a legal and not a medical one, and the VA adjudicators, including the Board, are responsible for making this ultimate determination. Indeed, the Veteran has continuously reported that he has headaches that occur frequently with other symptoms such as nausea and sensitivity to light. Furthermore, the Veteran reported that his girlfriend has had to assist him with cold towels when he has had to retreat to a dark, quiet place, but that towels are not always readily available. Notably, the Veteran’s VA treatment records reveal that he was gainfully employed as a driver, and the Veteran has stated that when stricken with headaches while driving, he has had to pull over. Although the term “severe economic inadaptability” is not defined in the regulation, the Board finds that the nature and frequency of the headaches described by the Veteran and the VA treatment providers would approximate this definition. Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (acknowledged VA’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). In sum, the Board finds the evidence is approximately evenly balanced as to whether the Veteran's headaches more nearly approximate the criteria for a 50 percent rating under DC 8100. As the evidence is in equipoise, reasonable doubt must be resolved in favor of the Veteran. Accordingly, entitlement to the maximum schedular 50 percent rating for the Veteran’s headaches under DC 8100 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability. The Veteran contends that service connection is warranted for a low back disability. Specifically, during the January 2021 hearing, the Veteran testified that he believed that his low back pain stemmed from consistently rucking and carrying hundreds of pounds at a time over numerous deployments. The Veteran also testified that he was never told that he had scoliosis during his lifetime. By way of history, the Board notes that the Veteran’s April 1996 Report of Medical Examination reveals a finding of “scoliosis, mild, lumbar.” Yet, within the same report, an examining clinician included a handwritten note in the Summary of Defects and Diagnoses section of “I do not agree” as to the finding of scoliosis, mild, lumbar. No further recommendation for additional examination was noted, and the Veteran was subsequently qualified for service. In the April 1996 Report of Medical Examination, the Veteran certified that he was in good health and denied having a bone, joint, or other deformity or recurrent back pain. Thus, because scoliosis was discounted in the enlistment examination, the Veteran is entitled to the presumption of soundness. A March 1997 service treatment record shows a provisional diagnosis of mechanical lower back pain chronic – intermittent. The Veteran also noted having back pain in an undated Warrior Transition Battalion Intake form. The Veteran was afforded a VA back examination in May 2017, at which time the examiner provided that the Veteran was diagnosed with a lumbar strain. The examiner opined that it was less likely than not that the Veteran’s back disability was related to service. The examiner rationed that mild, scoliosis was noted at entry, as well as the notation of “I did not agree.” Further, the examiner stated that the Veteran’s entrance examination was silent as to complaints of lumbar or lower back pain or a diagnosis of any other lumbar spine condition. The examiner further stated that the Veteran’s noted documented mild scoliosis was considered resolved. The examiner reported that the Veteran’s low back pain was not related to service because it was not noted at entry and that, therefore, no chronic condition of mechanical back pain could not be established. The Board finds that the May 2017 examination is inadequate for several reasons. First, the Veteran’s clinical evaluation of his spine was normal at entry. As such, the Board finds that a back disability, to specifically include scoliosis, was not noted at entry at service and that the Veteran’s back is therefore presumed to have been in a sound condition. Thus, the Board finds that the May 2017 opinion is based on an inaccurate factual premise as the examiner based his opinion on the belief that the Veteran had scoliosis at entry. Additionally, the fact that no low back pain was noted during service alone is not a sufficient rationale. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied on lack of evidence in service treatment records to provide negative opinion). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his current back disability. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current back disability was incurred in or is otherwise related to his active service, to include as due to carrying and walking with heavy equipment on his back. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. **The examiner is advised that the Veteran did not have scoliosis at entry. The examiner must accept this as fact in reaching any medical conclusions. **The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain during service and thereafter. If there is a medical basis to support or doubt the Veteran’s reports of symptomatology, the examiner should provide a fully reasoned explanation. Any opinion provided must be accompanied by a rationale. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hanson, 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.