Citation Nr: 21027265 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-40 750 DATE: May 5, 2021 ORDER Entitlement to an initial compensable rating for service-connected headaches, previously claimed as migraines, is denied. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's migraines were characterized by migraine pain with associated non-headache symptoms, but were not characterized by prostrating attacks of migraine pain averaging one in two months over the last several months. 2. The Veteran's right knee disability is not causally related to service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes (DC) 8199-8100. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1978 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012 and December 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing has been associated with the file. This issue was previously before the Board in October 2019. The Board found new and material evidence was received to reopen the claim of entitlement to service connection for a right knee disorder. The Board remanded the claims of entitlement to service connection for a right knee disorder and for an initial compensable rating for a headache disorder for further development, to include VA examinations. In accordance with the Board remand, VA examinations were performed in November 2019 and the claim has now been returned to the Board for further action. A Supplemental Statement of the Case was issued in November 2019. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial compensable rating for headaches is denied. The Veteran seeks an initial compensable rating for his headaches. The Veteran's headaches are rated as noncompensable pursuant to 38 C.F.R. § 4.124, DC 8199-8100. Hyphenated codes are intended to show that the Veteran's service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Under Diagnostic Code 8100, a noncompensable (zero percent) rating is warranted for migraines with less frequent attacks (that did not average one in two months over the last several months). A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria of Diagnostic Code 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 Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary (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. Although prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine symptoms, medical evidence is required to establish that the reported symptoms are due to migraines. Turning to the evidence of record, the Veteran was provided a VA Headaches Disability Benefits Questionnaire (DBQ) examination in November 2012. A 1979 diagnosis of headaches was noted. The Veteran reported frontal headache pain, two times a week. No non-headache symptoms associated with headaches were noted. The duration of head pain was noted as less than one day. No prostrating attacks were reported. The examiner reported that his headache condition would not impact his ability to work. During a September 2015 neurology consultation, the Veteran reported that since service in the 1980's he has been experiencing headaches three times a week. Bright light triggers and worsens the headache, and a dark room helps a little. Sometimes he experiences vomiting, and the headaches last from 1-2 days. During an October 2015 Decision Review Officer Conference Report, the Veteran asserted he had prostrating headaches 4 times per week. A neurology outpatient note from May 2016 reported the Veteran's last headache was three weeks ago, and he feels that his headaches are better controlled, but still has severe episodes when it hits. During an August 2016 primary care follow-up appointment, the Veteran's migraine headaches were noted as stable. A neurology outpatient note from November 2016 reflects that the Veteran was seen for headaches. He reported experiencing headaches since the 1980s, three times a week. Pain was noted in the frontal area, bilaterally, and was described as throbbing and sharp sometimes. The headaches lasted between 1 and 2 days. The examiner noted that headaches requiring Sumatriptan occurring up to 3 times per week, although the Veteran may be headache free for up to two weeks. During a June 2017 primary care follow-up appointment, the Veteran's migraine headaches were noted as stable. In September 2017, the Veteran was provided his second VA Headache DBQ. A May 2011 diagnosis of migraines, including migraine variants, was reported. The Veteran reported his migraines began in 1979 and stated he had "throbbing on both sides of his head." Medication included Sumatriptan 50 mg. Non-headache symptoms associated with headaches included nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. A duration of typical head pain lasted 1-2 days. No prostrating attacks of migraine/non-migraine headache pain were noted. A mental health note from October 2017 noted the Veteran reported he has been struggling with frequent migraines, which "stress me out." Pain was reported at an 8 out of 10. A neurology outpatient note from April 2018 noted a referral for migraine headaches. Headaches from the 1980s were reported and described as bilateral frontal, throbbing and sharp pain, sometimes with nausea and/or vomiting. The Veteran reported experiencing headaches 3 times a week and noted trying Tylenol, Motrin, and Excedrin Migraine with some relief and taking Sumatriptan 3 times a week; but it did not help much. A neurology outpatient note from July 2019 noted a chief complaint of migraine headaches. The Veteran reported having headaches since the 1980s, described as bilateral frontal, throbbing and sharp. Nausea and vomiting were reported during some headaches, and retreat to a dark room improved the symptoms. The Veteran noted his headaches were worse when he is off Topiramate. He reported headaches 5 days a week, lasting 12+ hours. In October 2019, the Veteran testified that he experiences pain "right in back of my head, near the temple." He testified to experiencing vomiting and dizziness associated with his headache disability. He reported experiencing four attacks out of a week and must sit down at work when he experiences them. See Hearing Testimony, Page 4. In November 2019, the Veteran was afforded a VA Headaches examination. The examiner indicated a diagnosis of headaches and migraines. The Veteran reported taking Topiramate 200 mg daily for headaches. He reported symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsening with physical activity. Non-headache symptoms associated with headaches included nausea, vomiting, sensitivity to light and sound, and changes in vision were reported. Duration of typical head pain was reported at 1-2 days. Prostrating attacks of migraine/non-migraine headache pain were noted, with less frequent attacks. The examiner noted that the Veteran's headache condition would impact his ability to work, in that it would limit his activities which require focus and concentration during migraine episodes, such as using a computer. After a review of the above, the Board finds that an initial compensable disability rating is not warranted for the Veteran's service-connected headaches. The evidence shows that the Veteran's migraines manifest as constant head pain that lasts 1 to 2 days and are accompanied by non-headache symptoms including nausea, vomiting, sensitivity to light and sound, and changes in vision. When considering all pertinent evidence of record, the probative evidence of record does not support a finding that the severity of the Veteran's migraines is characterized by prostrating attacks averaging one in 2 months over the last several months. Specifically, as noted above, the November 2019 VA examiner determined that the Veteran did have characteristic prostrating attacks of migraine pain; however, they occurred less frequently than required for a compensable rating. Further, there is no evidence, nor has the Veteran asserted, that the severity of his headache symptoms have rendered him essentially powerless, or with marked exhaustion, at an average of at least once in 2 months over the last several months, to support at least a compensable rating. Therefore, the evidence of record does not support a compensable disability rating for the Veteran's service-connected migraine headaches at any point during the appeal period. The Board acknowledges that the Veteran testified at the October 2019 Board hearing that he experiences headache pain four times a week and when he is at work he will have to sit down. He is certainly competent to describe his headache symptoms. Unfortunately, however, without probative evidence of prostrating types of attacks occurring, the criteria for a compensable rating cannot be met. In other words, his headache pain does not rise to a level warranting a compensable rating. Accordingly, the Board finds that the claim for an initial compensable rating for the Veteran's service-connected migraine headaches must be denied. In reaching this 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. See 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a right knee disability is denied. The Veteran contends that his right knee disability is related to service. Specifically, he contends that he injured his right knee during an obstacle course. Alternatively, he contends he hurt it after jumping over a sign in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has a current diagnosis of bilateral knee patellofemoral pain syndrome (PFPS), the preponderance of the evidence weighs against finding that the diagnosis of PFPS began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) do not show complaints, treatment, or diagnosis of an in-service right knee injury. A report of medical history from November 1978 did not note any problems with the knees. An STR from May 1979 noted lower extremity strength in all muscle groups as good, including the knees. A report of medical history from September 1979 noted no issues with either knee. The Veteran's separation examination was silent for any knee problems. Post-service treatment records show in March, May, and August 2012, the Veteran reported pain in his knees, rated at a 7 out of 10. The Veteran was provided a VA Knee and Lower Leg Conditions DBQ in November 2012. The examiner opined no previous or current diagnosis of a knee or lower leg condition. After an examination and review of the Veteran's claims file, the examiner opined that the Veteran's claimed knee condition was less likely than not related to service. The rationale provided was that the Veteran had a normal examination, normal x-rays, no pathology, and no evidence of a chronic ongoing condition associated with military service. During the examination, the Veteran reported hurting his knee in service, after jumping over a sign. He reported no treatment for a knee condition. Pursuant to the October 2019 Board remand, the Veteran was afforded a Knee and Lower Leg Conditions DBQ examination in November 2019, during which he was diagnosed with bilateral PFPS. The examiner opined that the Veteran's right knee disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale provided was that, during service, the condition was acute only. There was no evidence of chronicity of care, therefore, a nexus had not been established. Treatment records show the Veteran was not diagnosed with PFPS until November 2019, nearly 40 years after his separation from service. Further, the November 2019 VA examiner opined that the Veteran's PFPS is less likely than not related to an in-service injury, event, or disease. There is no competent opinion to the contrary. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a right knee disability. Although the Veteran contends his right knee disability is due to service, he lacks the competence to provide a nexus opinion. There is no evidence in the record showing that he has the medical training, credentials, or other expertise to competently conclude that his right knee pain in service were manifestations of an undiagnosed but still chronic right knee disability. The Veteran has a current right knee disability and he reported in-service injuries to the right knee. However, there is no competent nexus or link between his current right knee disability and the reported in-service injuries. The November 2019 VA medical examination is highly probative as to the ultimate determination of whether the diagnosed bilateral patellofemoral pain syndrome was incurred in or is otherwise attributable to service. Specifically, the examiner reviewed the claims file and referred to the Veteran's medical history in finding that there was no link between his current symptoms and the injuries in service. As such, the November 2019 opinion that it was less likely than not that the bilateral patellofemoral pain syndrome was attributable to service, is highly probative, and uncontroverted. Again, the Veteran is not competent to provide a nexus opinion as to this matter. Absent a competent opinion linking the Veteran's right knee disability to service, service connection must be denied. Furthermore, as there is no documentation of the Veteran was diagnosed with right knee arthritis in service, and the patellofemoral pain syndrome diagnosis was not set forth until almost 40 years after separation, the Board finds that service connection for a right knee disability based on continuity of symptomatology under 38 C.F.R. § 3.303(b) is also denied. The preponderance of the evidence is against the claim, and it must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, Associate 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.