Case A22004982

BRIAN J. ELWOOD · 2022 · Case ID: A22004982

MIXED

Summary

The veteran, who served from August 1965 to August 1966, appeals decisions denying entitlement to earlier effective dates for several service-connected conditions and higher initial ratings for others. The Board granted entitlement to a total disability rating based on individual unemployability (TDIU) from January 31, 2014, finding that the veteran's combined service-connected disabilities, including lumbar spine issues, radiculopathy, bilateral knee conditions, tension headaches, and psychiatric conditions, rendered him unable to secure or follow substantially gainful employment. The Board also granted an earlier effective date of January 31, 2014, for left lower extremity radiculopathy, finding that medical records from July 2013 and May 2014 indicated the presence of this condition. However, claims for earlier effective dates for lumbar spine degenerative joint disease, right knee degenerative joint disease and meniscal tear, left knee strain, right lower extremity radiculopathy, and tension headaches were denied, as the October 2007 decision denying service connection for lumbar spine and right knee disabilities had become final, and no new and material evidence or informal claims were found prior to the January 31, 2014 application to reopen. Claims for higher initial ratings for lumbar spine degenerative joint disease and right lower extremity radiculopathy were denied, as the evidence did not meet the schedular criteria for higher evaluations. The claims for higher initial ratings for right knee degenerative joint disease, meniscal tear, and left knee strain were remanded due to an inadequate VA examination that failed to provide required range of motion measurements and explanations.

Rationale

Veteran meets schedular criteria for TDIU with combined 80% disability.; Veteran's physical and psychiatric limitations prevent securing/following substantially gainful employment.; Reasonable doubt resolved in veteran's favor.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

210603-207759

Full Decision Text

Citation Nr: A22004982
Decision Date: 03/22/22 Archive Date: 03/22/22

DOCKET NO. 210603-207759
DATE: March 22, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from January 31, 2014, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an earlier effective date of service connection of January 31, 2014, but no earlier, for left lower extremity radiculopathy is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an earlier effective date of service connection prior to January 31, 2014 for degenerative joint disease of the lumbosacral spine with disc extrusion is denied.

Entitlement to an earlier effective date of service connection prior to January 31, 2014 for right knee degenerative joint disease and meniscal tear is denied.

Entitlement to an earlier effective date of service connection prior to January 31, 2014 for right lower extremity radiculopathy is denied.

Entitlement to an earlier effective date of service connection prior to January 31, 2014 for left knee strain is denied.

Entitlement to an earlier effective date of service connection prior to July 22, 2014 for tension headaches is denied.

Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the lumbosacral spine with disc extrusion is denied.

Entitlement to an initial rating higher than 20 percent for right lower extremity radiculopathy is denied.

Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy is denied.

Entitlement to an initial compensable rating for tension headaches is denied.

REMANDED

Entitlement to an initial rating higher than 10 percent for right knee degenerative joint disease and meniscal tear is remanded.

Entitlement to an initial rating higher than 10 percent for left knee strain is remanded.

FINDINGS OF FACT

1. From January 31, 2014, the Veteran's service-connected disabilities have rendered him unable to secure and follow substantially gainful employment.

2. VA medical records indicate the presence of left lower extremity radiculopathy as of the January 31, 2014 receipt of the application to reopen the claim of service connection for lumbar spine disability.

3. The Veteran filed a claim of service connection for lumbar spine and right knee disabilities in June 2006 and it was denied in October 2007; he did not appeal the October 2007 decision, and no new and material evidence was received within one year of the issuance of that decision.

4. The Veteran's application to reopen the claims of service connection for lumbar spine and right knee disabilities, and the claim of service connection for left knee disability, were received on January 31, 2014; there is no unadjudicated formal or informal application to reopen the claims of service connection for lumbar spine and right knee disabilities or claims of service connection for left knee disability or lower extremity neurological disability prior to January 31, 2014.

5. The Veteran first filed a claim of service connection for a headache disability on July 22, 2014; there is no unadjudicated formal or informal claim of service connection for headache disability prior to July 22, 2014.

6. Since the January 31, 2014 effective date of service connection for degenerative joint disease of the lumbosacral spine with disc extrusion, forward flexion of the thoracolumbar spine has not been less than 65 degrees, there has been no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; the functional limitation reported for this period is limited mobility due to pain, which interferes with activities such as standing, sitting, walking, and bending, but there has been no significant additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, and incoordination with repeated use over time and during flare ups.

7. Since the January 31, 2014 effective date of service connection, the Veteran's right lower extremity radiculopathy, sciatic nerve involvement, has been manifested by no more than moderate incomplete paralysis.

8. Since the January 31 2014 effective date of service connection, the Veteran's left lower extremity radiculopathy, sciatic nerve involvement, has been manifested by no more than mild incomplete paralysis.

9. Since the January 31, 2014 effective date of service connection, the Veteran has experienced tension headaches with less frequent attacks that have not manifested in characteristic prostrating attacks averaging one
lack of endurance, fatigability, and incoordination with repeated use over time and during flare ups.

CONCLUSIONS OF LAW

1. From January 31, 2014, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

2. The criteria for an effective date of January 31, 2014, but no earlier, for the award of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

3. The October 2007 rating decision that denied service connection for lumbar spine and right knee disabilities is final. 38 U.S.C. § § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103.

4. The criteria for an effective date earlier than January 31, 2014 for the award of service connection for degenerative joint disease of the lumbosacral spine with disc extrusion have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

5. The criteria for an effective date earlier than January 31, 2014 for the award of service connection for right knee degenerative joint disease and meniscal tear have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

6. The criteria for an effective date earlier than January 31, 2014 for the award of service connection for left knee strain have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

7. The criteria for an effective date earlier than January 31, 2014 for the award of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

8. The criteria for an effective date earlier than July 22, 2014 for the award of service connection for tension headaches have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400.

9. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine with disc extrusion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242.

10. The criteria for an initial disability rating in excess of 20 percent for right lower radiculopathy, sciatic nerve involvement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

11. The criteria for an initial disability rating in excess of 10 percent for left lower radiculopathy, sciatic nerve involvement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

12. The criteria for an initial compensable rating for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August
rating in excess of 10 percent for left lower radiculopathy, sciatic nerve involvement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

12. The criteria for an initial compensable rating for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1965 to August 1966. These matters come before the Board of Veterans' Appeals (Board) on an appeal from June 8, 2020 and January 11, 2021 rating decisions by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran timely appealed the June 2020 and January 2021 decisions to the Board in June 2021 and elected the Board's evidence submission docket. See June 3, 2021 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the June 8, 2020 and January 11, 2021 rating decisions and evidence submitted with, or within 90 days of the June 3, 2021 filing of, the Notice of Disagreement initiating appellate review. 38 C.F.R. § 20.303 (2021). The Veteran submitted an August 2021 statement and the Veteran's representative submitted medical evidence and argument in August 2021.

I. TDIU

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), from January 31, 2014.

The Veteran filed a claim for a TDIU on December 30, 2016. Following the grant of service connection for lumbar spine, radiculopathy, bilateral knee, and headache disabilities, the Veteran disagreed with the initial evaluations assigned. The Veteran's disagreement with the initial evaluations assigned is in essence, a claim for increased evaluations.

The Board has expanded the appeal to include the issue of entitlement to a TDIU as part and parcel of the underlying appeal for higher initial ratings for the service-connected lumbar spine, radiculopathy, bilateral knee, and headache disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board finds that a Rice TDIU claim had been reasonably raised as part of his increased rating claim for posttraumatic stress disorder (PTSD), which was pending when the RO issued the AMA rating decision on appeal. The Board notes that the Veteran's statements and the evidence submitted from his representative was received within a proper evidentiary window and relates to the period prior to the rating decisions on appeal.

The RO issued a January 2018 rating decision which denied the claim for a TDIU. The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, he has contended that lumbar spine, bilateral radiculopathy, bilateral knee, tension headaches and psychiatric disabilities have prevented him from working. See August 2021 Statement; see also August 2021 VA Form 21-8940.

Upon review of the evidence, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow substantially gainful employment from January 31, 2014.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability ratings assigned for his or her service-connected disabilities meet certain thresholds. 38 C.F.R. § 4.16(a).

During the period on appeal, the Veteran has been in receipt of service connection for the following disabilities: depressive disorder, rated 50 percent disabling, from January 31, 2014 through November 27, 2016, and 70 percent disabling, from November 28, 2016; right lower extremity radiculopathy, 20 percent disabling effective January 31, 2014 degenerative joint disease of the lumbosacral spine with disc extrusion, evaluated as 10 percent disabling effective January 31, 2014; right knee degenerative joint disease and meniscal tear, evaluated as 10 percent disabling effective January 31, 2014; left knee strain, evaluated as 10 percent disabling effective January 31, 2014; tinnitus, rated 10 percent disabling,
disabilities: depressive disorder, rated 50 percent disabling, from January 31, 2014 through November 27, 2016, and 70 percent disabling, from November 28, 2016; right lower extremity radiculopathy, 20 percent disabling effective January 31, 2014 degenerative joint disease of the lumbosacral spine with disc extrusion, evaluated as 10 percent disabling effective January 31, 2014; right knee degenerative joint disease and meniscal tear, evaluated as 10 percent disabling effective January 31, 2014; left knee strain, evaluated as 10 percent disabling effective January 31, 2014; tinnitus, rated 10 percent disabling, from November 21, 2014; tension headaches, rated noncompensable, from July 22, 2014; and bilateral hearing loss, rated noncompensable, from November 21, 2014. Finally, in this decision, the Board is granting an earlier effective date of service connection for left lower extremity radiculopathy of January 31, 2014. The Veteran meets the schedular criteria for TDIU since January 31, 2014, with a combined disability evaluation of 80 percent. Id.

The Board turns to the second aspect of a TDIU claim: whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.

Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) a veteran's history, education, skill and training, (b) a veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether a Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003).

Pertinent to the Veteran's educational history, he has a high school education and left his occupation as a truck driver in 2008 due to service-connected disabilities. The Board notes that he initially reported that he ceased working due to major depressive disorder. See December 2016 VA Form 21-8940.

The Board must consider whether service-connected disabilities render the Veteran unemployable; the Veteran does not allege that a single disability renders him unemployable. Rather, he alleges that a combination of his service-connected disabilities renders him unemployable. The Veteran indicated he has a high school education.

As to the impairment from his lumbar spine, radiculopathy, and bilateral knee disabilities, the evidence indicates that the Veteran would be incapable of sitting, standing, or walking due to bilateral knee pain, bilateral radiculopathy, and lumbar spine pain. See November 2019 Lumbar Examination; see also November 2019 Knee Examination. The examiner noted mild bilateral intermittent pain, paresthesias or dysesthesias, and numbness associated with bilateral lumbar radiculopathy.

The Veteran's psychiatric disability results in reduced reliability and productivity due to depressed mood, near continuous panic or depression affecting ability to function independently, disturbances of mood and motivation, and an inability to establish and maintain effective relationships. See April 2017 Examination.

Finally, the Veteran submitted a report from F.R., Certified Rehabilitation Counselor, which indicates that the Veteran's service-connected disabilities would render him unable to obtain or maintain employment. See July 2021 Report. The Board notes this report is consistent with the medical evidence of record.

The Board finds the Veteran's physical limitations from his service-connected lumbar spine, radiculopathy, tension headaches, bilateral hearing loss, tinnitus, and bilateral knee disabilities, and the limitations from his psychiatric disability, would make securing his past relevant employment as a truck driver very difficult, if not impossible. Further, given his education, he does not have the transferrable skills to obtain and maintain other employment in light of limitations from his service-connected disabilities. Specifically, he lacks the residual physical capacity for manual labor and his psychiatric limitations prevent him from obtaining work that involves interacting with others.

Accordingly, based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment during the entire claim period since January 31, 2014. While the Veteran indicated that he became too disabled to work in 2008, he is not service-connected for any disabilities prior to January 31, 2014. The Board also notes the underlying claim from which the TDIU claim arose was a disagreement with the initial evaluation assigned following service connection.

Here, the Veteran indicated he became too disabled to work more than one year prior to his claim, as shown by his reports that he last worked in 2008. 38 C.F.R. § 3.400. Based on the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities prevented him from securing or following a substantially gainful employment from January 31, 2014. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(a). Therefore, entitlement to a TDIU as of this date is warranted.

II. Earlier Effective Dates

Unless specifically provided otherwise, the effective date of an award of compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability, and the mere presence of medical evidence of a condition does not establish intent on the part of the Veteran to seek service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998). An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015.

Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is
legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999).

Procedural History for Lumbar Spine, Lower Extremity Radiculopathy, and Bilateral Knee Disabilities

The Veteran filed a claim of service connection for lumbar spine and right knee disabilities in June 2006, and it was denied in an October 2007 rating decision. The Veteran was notified of the decision and his appellate and procedural rights in an October 30, 2007, letter, he did not appeal the October 2007 decision within one year of its issuance, and new and material evidence was not received, constructively or otherwise, within that year. Additional evidence was associated with the record in the year following the October 2007 notice of the October 2007 decision, however this evidence was not new and material to the denials of service connection for lumbar spine and right knee disabilities. See August 2008 Medical Record. Therefore, the October 2007 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the October 2007 decision.

The next communication of relevance is a VA Form 21-526b, Supplemental Claim, received on January 31, 2014 requesting to reopen the claims of service connection for lumbar spine and right knee disabilities, and requesting service connection for left knee disability. See January 2014 VA Form 21-526b. The RO assigned an effective date of January 31, 2014 for the award of service connection for his back, right lower extremity neurological, and bilateral knee disabilities, which was the date VA received the Veteran's application to reopen the claims. The RO found the Veteran's right lower extremity radiculopathy existed since he filed his application to reopen, as contrasted with his left lower extremity radiculopathy, for which an effective date of November 27, 2019 was assigned.

Analysis

1. Entitlement to an earlier effective date of service connection prior to November 27, 2019 for left lower extremity radiculopathy.

Service connection for left lower extremity radiculopathy was granted in a June 2020 rating decision and the effective date assigned was the date of the Veteran's VA examination, November 27, 2019. The RO found this was the earliest evidence of radiculopathy in the Veteran's left lower extremity. The RO found that VA and private medical records showed right lower extremity radiculopathy from the date of application to reopen, but that left lower extremity radiculopathy was not shown.

However, the Board notes that VA medical records from July 2013 and May 2014 show indications of left lower extremity sciatic radiculopathy. Specifically, a July 2013 treatment note indicates a history of radiculopathy. Imaging of the Veteran's lumbar spine in July 2013 shows moderate disc extrusion with right central distribution with bilateral neuroforaminal moderate to severe on right and moderate on left at L3-L4. See July 2013 Medical Record. Thereafter, the Veteran underwent an examination where a positive Straight Leg Raise (SLR) test was obtained, indicating the presence of sciatic nerve root impingement. See May 2014 Medical Record.

Accordingly, the Board finds that an earlier effective date for the grant of service connection for radiculopathy of the left lower extremity, from January 31, 2014, is warranted. As discussed above, the medical evidence of record indicates bilateral radiculopathy as early as July 2013, with confirmation by straight leg raise test in May 201
right central distribution with bilateral neuroforaminal moderate to severe on right and moderate on left at L3-L4. See July 2013 Medical Record. Thereafter, the Veteran underwent an examination where a positive Straight Leg Raise (SLR) test was obtained, indicating the presence of sciatic nerve root impingement. See May 2014 Medical Record.

Accordingly, the Board finds that an earlier effective date for the grant of service connection for radiculopathy of the left lower extremity, from January 31, 2014, is warranted. As discussed above, the medical evidence of record indicates bilateral radiculopathy as early as July 2013, with confirmation by straight leg raise test in May 2014. There is no evidence of any unadjudicated formal claim of service connection for left lower extremity neurological disability prior to January 31, 2014, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Also, as explained below, there is no formal or informal application to reopen the claim of service connection for back disability subsequent to the October 2007 rating decision and prior to January 31, 2014.

Accordingly, an effective date of January 31, 2014 (the date of receipt of the application to reopen the clam of service connection for lumbar spine disability), but no earlier, is assigned. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

2. Entitlement to an earlier effective date of service connection prior to January 31, 2014 for degenerative joint disease of the lumbosacral spine with disc extrusion.

3. Entitlement to an earlier effective date of service connection prior to January 31, 2014 for right knee degenerative joint disease and meniscal tear.

4. Entitlement to an earlier effective date of service connection prior to January 31, 2014 for right lower extremity radiculopathy.

5. Entitlement to an earlier effective date of service connection prior to January 31, 2014 for left knee strain.

As discussed above, the October 2007 decision denying service connection for lumbar spine and right knee disabilities became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103.

The next communication of relevance is a VA Form 21-526b, Supplemental Claim, received on January 31, 2014 requesting to reopen the claims of service connection for lumbar spine and right knee disabilities. The RO assigned an effective date of January 31, 2014, the date VA received the Veteran's application to reopen the claims. The RO also assigned an effective date of January 31, 2014 for right lower extremity radiculopathy based on a finding that the Veteran manifested this disability at the time of his application to reopen the claim for service connection for lumbar spine disability.

The Board also notes the RO granted an effective date of service connection for left knee strain of January 31, 2014, based on the Veteran's notation on a VA Form 21-526b listing "knees" as an issue. See January 2014 VA Form 21526b. Therefore, January 31, 2014 is the date of the application to reopen the previously denied claims of service connection for right knee and lumbar spine disability, and the date of claim for right lower extremity neurological disability and left knee disability. There is no evidence of any unadjudicated formal application to reopen the claims of service connection for back disability or right knee disability subsequent to the October 2007 rating decision and prior to January 31, 2014, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Also, there is no evidence of any unadjudicated formal claim of service connection for right lower extremity neurological disability or left knee disability prior to January 31, 2014, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same.

Accordingly, the Board finds that an earlier effective date for the grant of service connection for lumbar spine, right knee, left knee, or right lower extremity radiculopathy prior to January 31, 2014 is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

6. Entitlement to an earlier effective date of service connection prior to July 22, 2014 for tension headaches

The Veteran contends he is entitled to an earlier
or left knee disability prior to January 31, 2014, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same.

6. Entitlement to an earlier effective date of service connection prior to July 22, 2014 for tension headaches

The Veteran contends he is entitled to an earlier effective date of service connection for headache disability, although there is no specific argument. The Veteran's VA Form 21-526EZ was received on July 22, 2014. See July 2014 VA Form 21-526EZ. The Board finds this is the first instance the Veteran asserted service connection for a headache disability.

As there is no communication that may serve as an informal or formal claim of service connection for headache disability that was received prior to July 22, 2014, an earlier effective date is not warranted. Neither the Veteran nor his representative have alleged any specific error made by the RO in the initial assignment of the effective date. See June 2021 VA Form 10182; see also August 2021 Appellate Brief.

III. Higher Initial Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).

Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110 ; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the lumbosacral spine with disc extrusion.

The Veteran contends he is entitled to a higher evaluation for lumbar spine disability.

The Veteran's lumbar spine disability is evaluated under Diagnostic Code 5242, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id.

In general, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

As relevant to the thoracolumbar spine, the General Formula provides for a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the
ait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id. The ratings provided in the General Rating Formula were not amended by the regulatory changes.

Analysis

The Veteran underwent a VA examination in November 2019. The Veteran reported an inability to sit or stand for too long without needing to move due to back pain, an inability to bend, and symptoms of radiculopathy and pain. The Veteran did not report any flare ups of back symptoms. See November 2019 Examination. Range of motion testing showed the Veteran had forward flexion of 75 degrees, extension to 15 degrees, and bilateral lateral flexion and lateral rotation all to 15 degrees. The combined range of motion was 140 degrees. There was moderate tenderness to palpation of the lumbar spine and guarding or muscle spasm not resulting in abnormality. There was no objective evidence of pain on non-weight bearing and the examiner indicated that passive range of motion is not safe for the spine. The examiner opined that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over time, and that the ranges of spinal motion following repeated use over time would be flexion to 65 degrees and extension and right and left lateral flexion and rotation all to 15 degrees. There was no ankylosis or intervertebral disc syndrome.

The Board finds that the evidence is against a rating in excess of 10 percent for lumbar spine DDD at any time since the effective date of service connection. Forward flexion of the lumbar spine was limited to at most 65 degrees and the combined ranges of motion of the thoracolumbar spine was limited to at most 140 degrees, even when considering functional loss due to pain, weakness, fatigability, or incoordination following repeated use over time. The examiner noted the additional functional ability would be limited by pain, weakness, fatigability, or incoordination as discussed above, and the Veteran did not report any flare ups during the November 2019 examination. Thus, the range of motion findings on examination depicted the estimated range of motion during pain, weakness, fatigability, or incoordination after repetitive use over time.

The Board acknowledges the Veteran's lay reports of daily pain, pain during flare-ups, and periodic injections for pain, during his life. The Veteran reported that he would have significant limitation of motion after sitting for long periods of time. He also reported that his pain fluctuated and that his estimate was 7 out of 10 on the pain scale. See August 2021 Statement.

However, even considering the Veteran's lay reports of symptoms, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the lumbar spine to 60 degrees or less, or limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less, or the functional equivalent of favorable or unfavorable ankylosis of the spine. Also, there is no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board finds the November 2019 examination is consistent with the Veteran's VA medical records documenting complaints of lumbar spine pain and radiculopathy, and the November 2019 examination is probative of the Veteran's disability throughout the claim period.

Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's assertions coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may have believed that he met the criteria for the next higher rating, his assertions along with the medical findings do not meet the schedular requirements for a
muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board finds the November 2019 examination is consistent with the Veteran's VA medical records documenting complaints of lumbar spine pain and radiculopathy, and the November 2019 examination is probative of the Veteran's disability throughout the claim period.

Considering the foregoing, the most persuasive evidence weighs against finding that the Veteran's symptoms have resulted in the level of impairment required for a higher disability rating. The Board has considered the benefit of the doubt rule; however, that rule is inapplicable as the evidence persuasively weighs against the assigned of a higher initial rating at any time during the claim period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine with disc extrusion are not met, and a higher initial rating is not warranted.

2. Entitlement to an initial rating higher than 20 percent for right lower extremity radiculopathy.

The Veteran contends his right lower extremity radiculopathy warrants a higher initial evaluation.

The Veteran's service-connected radiculopathy with sciatic nerve involvement has been rated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.).

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling.

Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuously assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength.

Also, the Board looks to the plain-meaning dictionary definitions of "mild," "moderate," and "severe" for guidance. Mild is generally defined as "not being or involving what is extreme" or "not severe." Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree" or "serious." Id. at 1140.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at
severe" for guidance. Mild is generally defined as "not being or involving what is extreme" or "not severe." Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as "tending toward the mean or average amount." Id. at 798. Severe is generally defined as "of a great degree" or "serious." Id. at 1140.

The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123.

The Veteran was provided with a VA examination in November 2019. At the November 2019 VA examination, the Veteran's left lower extremity muscle strength was decreased at 3/5 and, sensory examination showed decreased results at the lower leg and foot for the right leg. Straight leg test was positive bilaterally. The Veteran was found to have mild bilateral intermittent pain, paresthesias or dysesthesias, and numbness. The examiner diagnosed the Veteran with moderate sciatic lumbar spine radiculopathy of the right leg. There was no indication of other organic changes, such as trophic changes or muscle atrophy. As the Veteran's right lower extremity incomplete paralysis is primarily sensory in nature, involves an average level of impairment, and does not result in any widespread or serious impairment, the Board finds than an evaluation in excess of 20 percent is not warranted at any time since the effective date of service connection. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the most persuasive evidence is against the assignment of an initial rating higher than 20 percent for right lower extremity radiculopathy. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy.

As discussed above, the Veteran was examined in November 2019. The Veteran's left lower extremity muscle strength was decreased at 4/5 and, sensory examination showed decreased results at the foot for the left leg. Straight leg test was positive. Left lower extremity reflexes and sensation were otherwise normal, and the Veteran was found to have mild bilateral intermittent pain, paresthesias or dysesthesias, and numbness. The examiner diagnosed the Veteran with mild sciatic lumbar spine radiculopathy of the left leg. There was no indication of other organic changes, such as trophic changes or muscle atrophy.

As the Veteran's left lower extremity incomplete paralysis is primarily sensory in nature, his muscle strength was 4/5, sensation was only decreased at the foot/toes, and the other neurological findings of the left lower extremity were otherwise normal, the Board finds an initial evaluation in excess of 10 percent is not warranted at any time since the effective date of service connection, as the Veteran's left lower extremity neurological symptoms and impairment are less than average, and are not widespread or extreme.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the most persuasive evidence is against the assignment of an initial rating higher than 10 percent for left lower extremity radiculopathy. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R.
any time since the effective date of service connection, as the Veteran's left lower extremity neurological symptoms and impairment are less than average, and are not widespread or extreme.

4. Entitlement to an initial compensable rating for tension headaches.

The Veteran seeks an increased rating for the period on appeal for his service-connected tension headaches currently evaluated at 0 percent disabling under diagnostic code 8199-8100. The Veteran's tension headaches are rated under 38 C.F.R. § 4.124a, under Diagnostic Code (DC) 8100 for migraine headaches. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 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. A 50 percent rating is the highest schedular rating under DC 8100.

The rating criteria of DC 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). Therefore, 38C.F.R. §§4.7 and 4.21 do not apply. 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 DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (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. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253.

The phrase "completely prostrating" generally means that the migraine attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted).

Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

During a July 2016 VA headache examination, the Veteran reported that he experienced frontal headaches brought on by stress, that occurred approximately 1 to 2 times per week and lasted for hours at a time. He took medications to treat his headaches. His headaches involved constant, pulsating/throbbing pain on both sides of the head that was worsened with physical activity, and were associated with nausea. He was unable to concentrate during headaches. The headaches lasted for less than one day at a time. He experienced prostrating attacks of non-migraine headache pain more frequently than once per month, but he did not have very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran was diagnosed as having tension headaches. This disability did not impact his ability to work.

The Veteran underwent another VA examination in December 2020. The examiner recorded the Veteran's symptoms as tension headaches brought on by stress that occur
time. He took medications to treat his headaches. His headaches involved constant, pulsating/throbbing pain on both sides of the head that was worsened with physical activity, and were associated with nausea. He was unable to concentrate during headaches. The headaches lasted for less than one day at a time. He experienced prostrating attacks of non-migraine headache pain more frequently than once per month, but he did not have very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran was diagnosed as having tension headaches. This disability did not impact his ability to work.

The Veteran underwent another VA examination in December 2020. The examiner recorded the Veteran's symptoms as tension headaches brought on by stress that occur 1-2 times per week, result in constant pain on both sides of his head and last less than one day. See December 2020 Examination. The examiner noted the Veteran denied characteristic prostrating attacks. The examiner also noted that the Veteran did not suffer from specific worsening based on movement or any other additional symptoms.

Thereafter, the Veteran submitted an August 2021 statement in which he reported that he experienced headaches as a truck driver that would impair his ability to drive. See August 2021 Statement. The Veteran reported that his headaches would cause him to pull over, close his eyes, and rest until his headache subsided. The Veteran also contended that occasionally he would spend the whole day at a truck stop to cope with a headache.

The Board also notes the Veteran's representative argues that the Veteran's headaches warrant a 50 percent evaluation for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See August 2021 Appellate Brief.

In contrast with the Veteran's reports at the December 2020 examination, the Board notes the Veteran reported constant headache pain with a pain level of 15/10 in February 2020. See February 2020 Medical Record. The Board also notes consistent reports of "nagging" headaches, or headaches related to a sty that caused blurred vision, dizziness, and headache pain. See June 2019 Medical Record.

The Board also notes that VA medical records for the period from July 2002 to February 2009, the period during which the Veteran was still employed as a truck driver, contains reports where he denies headaches, rather than reporting debilitating headaches. See February 2009 Medical Record. Here, the Veteran's August 2021 statement is inconsistent with the medical evidence for the timeframe he discusses, the VA medical records for this period only show denials of headaches. In this instance, the Board finds the medical records from the period from July 2002 to February 2009 contain negative evidence in the Veteran's specific denials of headache symptoms, rather than the absence of evidence. Also, the indication of prostrating headaches during the July 2016 examination is inconsistent with the Veteran's other reports, as noted above.

The Board attributes less probative value to the July 2016 examination and the Veteran's lay statements from August 2021 recalling his symptoms throughout the claim period, than to the contemporaneous medical records that document his complaints of headache symptoms because the August 2021 statement is inconsistent with the medical treatment record of evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence).

The Veteran is competent to report his observable symptoms. Jandreau, 492 F.3d at 1377. The Board finds that the Veteran suffers from headaches as often as multiple times per week. The Board also finds that there is no evidence of record that the Veteran's headaches are so severe as to cause characteristic prostrating attacks during the claim period.

As to whether the Veteran's headaches approximate prostrating attacks in consideration of the Veteran's reports of pausing his activities due to headache pain, his contentions do not equate to extreme exhaustion or powerlessness. The Board notes the Veteran has reported consistent headaches, sometimes moderate to severe, but the record does not indicate characteristic prostrating attacks.

Since a compensable rating under DC 8100 is not warranted unless the headaches cause characteristic prostrating attacks averaging one in 2 months over the last several months, simply experiencing even frequent headaches, without more, is insufficient to demonstrate entitlement to a compensable rating.

After considering the evidence of record, the Board concludes that the Veteran's tension headaches have not manifested in characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the claim period. The most persuasive evidence is against assigning a compensable rating for tension headaches, and the benefit of the doubt rule consequently does not apply. 38 U.S
consistent headaches, sometimes moderate to severe, but the record does not indicate characteristic prostrating attacks.

After considering the evidence of record, the Board concludes that the Veteran's tension headaches have not manifested in characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the claim period. The most persuasive evidence is against assigning a compensable rating for tension headaches, and the benefit of the doubt rule consequently does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, entitlement to an initial compensable rating for headaches is not warranted.

5. Additional Considerations

In conjunction with the higher rating matters decided herein, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

1. Entitlement to an initial rating higher than 10 percent for right knee degenerative joint disease and meniscal tear is remanded.

2. Entitlement to an initial rating higher than 10 percent for left knee strain is remanded.

Under the Appeals Modernization Act (AMA), the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the claimant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a).

VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was most recently examined in November 2019. See November 2019 Examination. The November 2019 VA examiner reported the Veteran had objective evidence of pain on passive and non-weight bearing tests, but did not provide the results for passive range of motion required by the Correia ruling. Where a test or opinion cannot be offered, bald statements that a test is not applicable are not sufficient. Instead, the examiner must provide a rationale why each test cannot be performed in the context of the Veteran, his or her disabilities, and the test requested. Cf. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the November 2019 VA examination is inadequate for evaluation purposes.

Thus, at present, the current medical evidence of record does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Therefore, a pre-decisional duty to assist error has occurred and a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral knee disabilities. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for the Veteran's disability, where range of motion is affected by active motion, passive motion, weight-bearing, and non-weight-bearing situations, or provide a thorough explanation as to why those tests cannot be performed.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of both the left and right knee. If the requested tests cannot be performed, the examiner should provide a thorough explanation as to why the tests cannot be performed.

The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements.

If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time.

If a test cannot be performed, a detailed explanation of why it cannot be performed is necessary.

(CONTINUED ON NEXT PAGE)

The examiner must provide reasons for any opinion given.

Brian J. Elwood

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Trickey

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.

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