Citation Nr: 18132222
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 835
DATE:	September 6, 2018
ORDER
Entitlement to service connection for a right knee disability is denied.
Entitlement to a compensable rating for tension headaches is denied.
FINDINGS OF FACT
1. The Veteran does not have a current diagnosis of a right knee disability.
2.  Although the Veteran regularly suffers from headaches, the evidence of record does not indicate that they are of a prostrating severity.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
2. The criteria for entitlement to a compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.20, 4.27, 4.124a, Diagnostic Code 8100 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from April 1996 to February 2006.
This case comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
I. Service Connection- Laws and Regulations
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d).
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a).
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). 
Right Knee Disability 
The Veteran seeks service connection for a right knee disability. He claims he has a current right knee disability that is related to or caused by his service. 
After a review of all of the evidence of record, both lay and medical, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have a diagnosis of a right knee disability. While the record contains extensive service and VA treatment records, these records do not reflect a current diagnosis of a right knee disability. 
Service treatment records (STRs) showed complaints of right leg pain. An April 1999 treatment record documented that the Veteran complained of right anterior tibial pain. An August 1999 MRI showed an impression of a lesion of the anterior medical aspect of the subacute tissue of the right calf.  A January 2006 treatment report noted that the Veteran had right anterior calf nodule. The Veteran’s separation examination report noted that he had a nodule on the anterior shin and he complained of right knee pain. The examiner noted that there was no specific diagnosis.
In July 2013, the Veteran was afforded a VA examination. The Veteran reported that in 1998 he had swollen knee and once he elevated his knee it improved. The Veteran indicated that his knee caused him trouble again in 2008. He reported that an X-ray and MRI was performed and nothing was found. He indicated since the 2008 event his knee continued to bug him and cause minor pain and no flare-up. Arthritis was not noted during the examination. The examiner noted that the Veteran’s claims file was reviewed. The Veteran was not diagnosed with a right knee disability. The examiner noted that there was no functional loss or impairment of the knee and lower leg.  
In October 2015, the Veteran was afforded another VA examination. The examiner reviewed the Veteran’s e-folder. The examiner noted that the Veteran did not have a current diagnosis associated with any right knee disability.  He indicated that the Veteran had a normal right knee during the examination. He further noted that the records were silent for a chronic right knee condition. The examiner concluded that there was no objective evidence of a claimed right knee/lower leg condition. He noted that during the examination there was a normal examination of the right knee and lower leg which included shin and calf. There was no tenderness or swelling of the knee. The Veteran did not report having any functional loss or functional impairment of the joint or extremity being evaluated, including but not limited to repeated use over time.  
Insomuch as the Veteran has attempted to establish a diagnosis of a right knee disability through his own lay assertions, the Board finds that the Veteran is not competent to diagnose that he has a current diagnosis of a right knee disability due to the medical complexity of the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the disability where the disability is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, the Veteran is not competent to render such a diagnosis.
Service connection may only be granted for a current disability; when a claimed disability is not shown, there may be no grant of service connection. See 38 U.S.C. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the record contains no current diagnosis of a right knee disability. As the Veteran is not currently diagnosed with a right knee disability, his service connection claim must be denied. The Board has considered the Veteran’s lay statements regarding pain and finds that the weight of the evidence does not demonstrate that the right knee pain right hip pain results in functional impairment that affects earning capacity and as such does not rise to the level of a disability.  See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  As there is no current disability, a discussion of any in-service incurrence or aggravation of a disease or injury, or nexus, is unnecessary. Entitlement to service connection for a right knee disability is denied.  
II. Increased Initial Ratings - Laws and Regulations
Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities and are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.  § 1155 (2012); 38 C.F.R. § 4.1 (2017).
Where there is a question as to which of two disability ratings applies, the higher disability rating 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 (2017).
In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial disability rating assigned with an original grant of service connection, the entire appeal period must be considered. Different disability ratings may be assigned for separate periods of time depending on the facts shown in the evidence, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Again, staged ratings may be assigned as warranted, based upon the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999).
Under DC 8100, migraine headaches with less frequent attacks are assigned a non-compensable disability rating. A 10 percent disability rating is assigned where the evidence shows that the migraine headaches occur with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted where migraine headaches occur with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum schedular 50 percent disability rating is appropriate where the evidence shows migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).
The rating criteria do not define the term “prostrating.” According to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” Essentially the same definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines “prostration” as “extreme exhaustion or powerlessness.”
When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Tension Headaches 
Service connection for headaches was granted to the Veteran in an August 2013 rating decision. A non-compensable initial disability rating was assigned pursuant to the criteria under 38 C.F.R. § 4.124a, DC 8100. The Veteran asserts that he is entitled to a compensable disability rating for his headaches. 
In July 2013, the Veteran was afforded a VA examination. The Veteran reported while in service he hit his head and had to receive staples. He indicated since that injury in service he had headaches on and off again. He reported that he learned how to just deal with the headaches. He noted that his headaches did not affect his work. The Veteran was diagnosed with a tension headache condition. The Veteran was prescribed Tylenol/Motrin for his headache treatment. His headaches did not have any characteristic prostrating attacks of migraine headache pain.  He did not have very frequent protesting and prolonged attacks of migraine headache pain. The Veteran did not have non-migraine prostrating attacks. The examiner opined that the Veteran’s headaches impacted his ability to work. The examiner explained that the Veteran indicated that his headaches did not affect his work but did cause a nuisance.
In October 2015, the Veteran was afforded another VA examination. The Veteran was diagnosed with tension headaches. The Veteran reported that his headaches occurred one to three times a month. He indicated that he took Aleve which helped sometimes. He reported that his headaches would last from one hour to an entire day. The Veteran experienced headache pain at the bilateral top of head described as a sharp constant pain.  The Veteran had symptoms described as nausea and sometimes dizziness. The examiner noted that the Veteran did not have characteristic attacks of migraine/non-migraine headache pain. The examiner opined that the Veteran’s headache condition did not impact his ability to work. 
Although the Veteran has reported regularly occurring headaches, the evidence does not support that these headaches, migraine or non-migraine, are characteristically prostrating. There is no indication that the Veteran was rendered helpless or incapacitated when these headaches occurred. To establish a compensable rating, it is not sufficient to demonstrate just the existence of a particular frequency of headaches; the severity of the attacks must be prostrating, which is not shown by evidence of record to warrant, at a minimum, a 10 percent rating. 38 C.F.R. § 4.124a, DC 8100.
The Board acknowledges that the Veteran suffers from regular episodes of headaches. However, the Veteran has not indicated that these headaches are prostrating in nature. Absent any evidence of prostrating headaches, the criteria to establish entitlement to a compensable rating have not been met; as the preponderance of the evidence is against the claim, it must be denied. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017); Alemay v. Brown, 9 Vet. App. 518 (1996).
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Baxter, Associate Counsel 

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