series: legacy

judge_norm: S SORATHIA

judge_role: Acting Veterans Law Judge

text:
Citation Nr: 23008000
Decision Date: 02/07/23	Archive Date: 02/07/23

DOCKET NO. 17-48 866
DATE: February 7, 2023

ORDER

From February 16, 2011, to March 6, 2022, entitlement to an initial 30 percent disability rating for posttraumatic headaches is granted.

From February 16, 2011, to August 17, 2022, entitlement to an initial disability rating in excess of 30 percent for posttraumatic headaches is denied.

Since August 18, 2022, entitlement to an initial disability rating of 50 percent for posttraumatic headaches is granted.

Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) prior to October 19, 2012 is denied.

FINDINGS OF FACT

1. From February 16, 2011, to, August 17, 2022, the Veteran's posttraumatic headaches manifested in characteristic prostrating attacks occurring on an average once a month over the last several months.

2. Since August 18, 2022, the Veteran's posttraumatic headaches are manifest by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

3. The evidence of record persuasively shows that the Veteran stopped working on October 19, 2012.

CONCLUSIONS OF LAW

1. From February 16, 2011, to March 6, 2022, the criteria for an initial 30 percent disability rating for posttraumatic headaches have been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 8100.

2. From February 16, 2011, to, August 17, 2022, the criteria for an initial disability rating in excess of 30 percent for posttraumatic headaches have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 8100.

3. Since August 18, 2022, the criteria for an initial disability rating of 50 percent for posttraumatic headaches have been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.124a, Diagnostic Code 8100.

4. The criteria for a TDIU prior to October 19, 2012 are not met.  38 U.S.C. � 1155, 5107; 38 C.F.R. �� 3.340, 3.341, 3.400, 4.16(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from August 1978 to October 1995.  These issues are on appeal before the Board of Veterans' Appeals (Board) from a June 2013 rating decision.  The Veteran and his spouse testified at a hearing before the undersigned Acting Veterans Law Judge in July 2021.  A transcript is of record.  In January 2022, the Board remanded these issues to the Agency of Original Jurisdiction (AOJ) for further development.  The issues have now been returned to the Board.

INCREASED RATINGS

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C. � 1155; 38 C.F.R. � Part 4.  Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.

The Veteran's posttraumatic headaches are rated under 38 C.F.R. � 4.124a, Diagnostic Code 8100.  He is currently assigned an initial 0 percent (noncompensable) disability rating prior to March 7, 2022, and a 30 percent rating since March 7, 2022.  He seeks higher initial disability ratings.

Migraine headaches are rated pursuant to 38 C.F.R. � 4.124a, Diagnostic Code 8100, for migraine.  Under Diagnostic Code 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 Diagnostic Code 8100.

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 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 migraines 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. 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 Diagnostic Code 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).

1. Entitlement to an initial compensable disability rating for posttraumatic headaches prior to March 7, 2022.

The Veteran asserts that he is entitled to an initial compensable rating because when he has bad headaches he will sometimes have to be in a dark area or room lying down.  See Board hearing transcript, pages 14-15.  He testified that in 2013, he was having headaches two or three times per week with really bad headaches at least twice a month.  Id. at 15.  At his hearing when asked if his headaches had anything to do with his work, the Veteran testified that, "I got to the point where I couldn't even concentrate on what I was doing, and they would send me home."  Id. at 17.

The Board concludes that the Veteran has had posttraumatic headaches with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period prior to March 7, 2022, corresponding to the criteria for a 30 percent rating under Diagnostic Code 8100.  38 C.F.R. � 4.124a.

This appeal arise from a February 16, 2011, service connection claim.  The Veteran was awarded service connection for his posttraumatic headaches secondary to his service-connected traumatic brain injury in the June 2013 rating decision.

During the course of the appeal, the Veteran was provided a VA traumatic brain injury examination in May 2013.  At the examination, the Veteran was found to have two prostrating headaches per month.  At the March 7, 2022, VA headaches examination, the examiner found that the Veteran has characteristic prostrating attacks of migraine/non-migraine headaches pain.  The VA and private treatment records currently contained in the Veteran's electronic claims file do not provide contrary evidence to that obtained at the VA examinations.

Further, at his hearing, the Veteran testified that he experiences really bad headaches at least twice a month.  See Board hearing transcript, page 15.  He testified that when he has a bad headache, he will sometimes have to be in a dark area or room lying down.  Id. at 14-15.  The Veteran is competent to report his readily observable symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Thus, in resolving all reasonable doubt in favor of the Veteran, the Board finds that an initial disability rating of 30 percent for posttraumatic headaches is warranted prior to March 7, 2022.  38 U.S.C. � 5107(b); 38 C.F.R. �� 4.3, 4.7.  The claim is granted.

2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic headaches for the entire appeal period.

The Veteran is now in receipt of a 30 percent initial disability rating for his posttraumatic headaches for the entire appeal period.

The Board concludes that the Veteran has had posttraumatic headaches manifest by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability since August 18, 2022, corresponding to the criteria for a 50 percent rating under Diagnostic Code 8100.  38 C.F.R. � 4.124a.

Specifically, at the August 18, 2018, VA traumatic brain injury examination, the examiner found that due to the posttraumatic headaches, the Veteran is limited in activities that require focus and concentration during headaches episodes, such as using a computer.  He needs to be in a dark, quiet, and cold room.  He is limited in all work, including sedentary work, during headaches episodes, which occur 2-3 times per week and last for less than a day.  The September 2022 VA headaches examiner found that the Veteran has characteristic prostrating attacks of migraine/non-migraine headaches pain.  The examiner determined that the Veteran's headaches impact his ability to work in that he is unable to focus and concentrate due to his migraines.  Further, at his hearing, the Veteran testified that when he has bad headaches he will sometimes have to be in a dark area or room lying down.  See Board hearing transcript, pages 14-15.  When asked if his headaches had anything to do with his work, the Veteran testified that, "I got to the point where I couldn't even concentrate on what I was doing, and they would send me home."  Id. at 17.

The Board acknowledges that the September 2022 VA examiner found that the Veteran's headaches do not result in very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.  However, based on the statements from the August 2022 and September 2022 VA examiners, the Board finds that the Veteran's headaches are capable of producing "severe economic inadaptability" due to a medical physician finding that the Veteran's headaches limit his work regularly two to three times per week.  As stated above, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Pierce, 18 Vet. App. at 445-46.

Thus, in resolving all reasonable doubt in favor of the Veteran, the Board finds that a higher 50 percent initial rating under Diagnostic Code 8100 is warranted since August 18, 2018, as the Veteran's posttraumatic headaches are manifest by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. � 4.124a.

Prior to August 18, 2022, the Veteran has had posttraumatic headaches with characteristic prostrating attacks occurring on average once a month over the last several months, corresponding to the criteria for a 30 percent rating under Diagnostic Code 8100.  38 C.F.R. � 4.124a.

Specifically, the Veteran was found to only have two prostrating headaches attacks per month at the May 2013 VA examination.  At the examination, he reported headaches that occur 2-3 times per week with an average duration of 2-3 hours.  The Veteran reported that his headaches reduce his work efficiency.  The March 2022 VA examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.  The examiner determined that the Veteran's headaches impact his ability to work because of his decreased focus and concentration during headaches.  The examiner indicated that prostrating attacks "could" cause missed work days.  This examiner's opinion is speculative and does not make a finding of attacks productive of severe economic inadaptability.  The VA and private treatment records do not provide any evidence contrary to that obtained at the VA examinations.

A higher 50 percent rating under Diagnostic Code 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. � 4.124a.  Here, prior to August 18, 2018, the Veteran's headaches lack the requisite frequency, the attacks are not completely prostrating and prolonged, and the attacks are not productive of severe economic inadaptability.  Thus, the Board concludes that the Veteran did not have headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time prior to August 18, 2022.  A higher 50 percent rating is not warranted under Diagnostic Code 8100 prior to August 18, 2022.  38 C.F.R. � 4.124a.

Accordingly, the Board concludes that the Veteran has had posttraumatic headaches with characteristic prostrating attacks occurring on average once a month over the last several months prior to August 18, 2018, corresponding to the criteria for a 30 percent rating under Diagnostic Code 8100.  38 C.F.R. � 4.124a.

The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences.  For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran's competent and credible belief that his disability is worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the reports of lay symptoms.  The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's reports of symptoms.  The Veteran has not demonstrated that he has this medical expertise.  For these reasons, greater evidentiary weight is placed on the physical examination findings.  Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated.

In conclusion, the Board finds that in resolving all reasonable doubt in favor of the Veteran, a 50 percent initial disability rating is warranted for the posttraumatic headaches, effective August 18, 2022.  However, the Board finds that the evidence of record persuasively weighs against an initial rating in excess of 30 percent for the posttraumatic headaches at any point prior to August 18, 2022.  As the evidence of record persuasively weighs against an initial rating in excess of 30 percent prior to August 18, 2022, the benefit-of-the-doubt rule does not apply.  38 U.S.C. � 5107(b); 38 C.F.R. �� 4.3, 4.7; Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).  The claim is denied.

3. Entitlement to a TDIU prior to October 19, 2012.

The Veteran generally contends that a TDIU is warranted prior to October 19, 2012.

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. �� 3.340, 3.341, 4.16.  The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. �� 3.340, 3.341, 4.16(a).  For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability.  38 C.F.R. � 4.16(a).

In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. �� 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); see Faust v. West, 13 Vet. App. 342 (2000).  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. �� 4.1, 4.15, 4.16(a)).  Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. � 4.16(b) to include two components: one economic and one noneconomic.  The economic component means 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.  The non-economic component includes consideration of: a veteran's history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and, whether a veteran has the mental ability to perform the activities required by the occupation at issue.

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

Prior to October 19, 2012, the Veteran was service-connected for the following disabilities: thoracolumbar spine degenerative disc disease with intervertebral disc syndrome, rated as 10 percent; posttraumatic headaches, now rated as 30 percent (as a result of this Board decision); right upper extremity radiculopathy, rated as 20 percent; left upper extremity radiculopathy, rated as 20 percent; cervical spine degenerative arthritis with intervertebral disc syndrome, rated as 10 percent; tinnitus, rated as 10 percent; sciatic nerve radiculopathy of the left lower extremity, rated as 10 percent; femoral nerve radiculopathy of the right lower extremity, rated as 10 percent; femoral nerve radiculopathy of the left lower extremity, rated as 10 percent; right lower extremity radiculopathy of the sciatic nerve, rated as 10 percent; right knee strain with tendinitis, rated as 0 percent; left knee strain with tendinitis and chondromalacia patellae, rated as 0 percent; and, traumatic brain injury, rated as 0 percent.

The cervical spine and bilateral upper extremity neurologic manifestations result from a common etiology, and thus, for TDIU purposes, are considered a single disability that is rated at 40 percent.  Prior to October 19, 2012, the combined rating was 80 percent, with the increase of the posttraumatic headaches to 30 percent.  The Veteran met the schedular requirements for a TDIU prior to October 19, 2012.  38 C.F.R. � 4.16(a).

Therefore, the remaining inquiry is whether such service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation prior to October 19, 2012.

Here, TDIU is in effect from October 19, 2012. The Veteran's Social Security Administration records reveal that the Veteran reported that he stopped working and became too disabled to work on October 19, 2012. His VA Form 8940, submitted in April 2013, notes that he stopped working and that his disability impacted his full-time employment in October 2012.

There is evidence of record that appears that the Veteran began slowing down his employment in September 2012. In a September 27, 2012 statement, the Veteran's spouse reported that the Veteran was not working and was still in a lot of pain. The Veteran stated that he could not do his job because of his medical problems. On September 27, 2012, the Veteran submitted a statement from his prior employer, D.W., and a separate statement from his friend, E.W.  Both of these statements were dated on September 23, 2012, and detailed that the Veteran could no longer work.  Specifically, the employer stated, "[c]onsidering [the Veteran's] condition and the diagnosis [he] received he will no longer be able to do this type of job description required at this store.  He has since then turned in his keys and retired his position at my store due to his condition . . . He wanted to retire at my store and I am so sorry this condition has taken him from me."  In the statement from E.W. also dated on September 23, 2012, the Veteran's friend wrote that the Veteran could no longer work and could not hold down a job. In April 2013, the Veteran submitted a statement from his spouse dated on September 20, 2012.  In this statement, the Veteran's spouse indicated that the Veteran could no longer perform his job and he had lost his job.  She reported that the pain had become too much for the Veteran and he was unable to sit for a long time or stand.

The Board recognizes that these lay statements from other individuals provide an indication that the Veteran may have stopped working in September 2012. However, as noted above, the Veteran's Social Security Administration records and his own VA Form 8940 reveal that he stopped working in October 2012. In weighing the lay and medical evidence of record, the Board finds that the evidence of record pervasively shows that the Veteran stopped working in October 2012.

As the evidence of record persuasively weighs against a TDIU prior to October 19, 2012, the benefit-of-the-doubt rule does not apply.  38 U.S.C. � 5107(b); 38 C.F.R. �� 4.3, 4.7; Lynch, 999 F.3d at 1391.

Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 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).

S. Sorathia

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. M. Watkins, 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.


judge_norm: JOHN R DOOLITTLE, II

judge_role: Veterans Law Judge

disposition: denied

condition: knee

condition: headache

text:
Citation Nr: 23009000
Decision Date: 02/10/23	Archive Date: 02/10/23

DOCKET NO. 13-15 377
DATE: February 10, 2023

ORDER

Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disability, is denied.

Entitlement to service connection for a disorder manifested by dizziness, to include as secondary to service-connected disability, is denied.

Entitlement to service connection for a migraine disorder, to include as secondary to service-connected disability, is denied.

Entitlement to service connection for a brain disorder, claimed as white fluid around brain cells with increased lesions, to include as secondary to service-connected disability, is denied.

FINDINGS OF FACT

1. The probative evidence of record is not at least in relative equipoise as to whether a right knee disorder was incurred in, aggravated by, or otherwise attributable to, active-duty service.  The probative evidence is not at least in relative equipoise as to whether a right knee disorder (arthritis) manifested to a compensable degree within one year of the Veteran's separation from service. The probative evidence is not at least in relative equipoise as to whether a right knee disorder was proximately caused by or aggravated "secondarily" by a service-connected disability.

2. The probative evidence of record is not at least in relative equipoise as to whether a disorder manifested by dizziness was incurred in, aggravated by, or otherwise attributable to, active-duty service.  The probative evidence is not at least in relative equipoise as to whether a disorder manifested by dizziness was proximately caused by or aggravated "secondarily" by a service-connected disability.

3. The probative evidence of record is not at least in relative equipoise as to whether a migraine disorder was incurred in, aggravated by, or otherwise attributable to, active-duty service.  The probative evidence is not at least in relative equipoise as to whether a migraine disorder was proximately caused by or aggravated "secondarily" by a service-connected disability.

4. The probative evidence of record is not at least in relative equipoise as to whether a brain disorder was incurred in, aggravated by, or otherwise attributable to, active-duty service.  The probative evidence is not at least in relative equipoise as to whether a brain disorder was proximately caused by or aggravated "secondarily" by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a right knee disorder have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.307. 3.309, 3.310; Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019).

2. The criteria for entitlement to service connection for a disorder manifested by dizziness have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310; Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019).

3. The criteria for entitlement to service connection for a migraine disorder have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310; Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019).

4. The criteria for entitlement to service connection for a brain disorder have not been met.  38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310; Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from August 1991 to February 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

By way of the most relevant procedural history, the Board has remanded these matters for additional evidentiary development in August 2017; March 2021; and, most recently, in July 2022.  The Board finds that there has been substantial compliance with its remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required).

1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected disability, is denied.

2. Entitlement to service connection for a disorder manifested by dizziness, to include as secondary to service-connected disability, is denied.

3. Entitlement to service connection for a migraine disorder, to include as secondary to service-connected disability, is denied.

4. Entitlement to service connection for a brain disorder, claimed as white fluid around brain cells with increased lesions, to include as secondary to service-connected disability, is denied.

The Veteran asserts that the four above-captioned disabilities were incurred in, aggravated by, or otherwise attributable to, active-duty.  Alternatively, as captioned-above, the Veteran asserts that service connection for these claimed disabilities is warranted on a secondary basis.

For the reasons articulated below, the Board finds that entitlement to service connection for these four claimed disabilities, even when contemplated under the evidentiary standards laid out in Lynch v. McDonough, 21 F. 4th 776, 781-82 (Fed. Cir. 2021) is not warranted.

Here, the evidence is not at least in relative equipoise as to whether the four claimed-disabilities were incurred in, aggravated by, or otherwise attributable (including secondarily) to, the Veteran's active-duty service.  Id. ("only when the evidence persuasively favors one side, or another is the benefit-of-the-doubt doctrine not for application").

Applicable Law: Service Connection

In order to establish service connection on a direct basis, the record must contain competent evidence of: (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.  Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018).

In the absence of proof of a present disability there can be no valid claim.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. � 3.159(a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).  If the evidence is competent, the Board must then determine if the evidence is credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

Some chronic diseasesto include arthritismay be presumed to have been incurred in service when they manifest to a degree of ten percent or more within the applicable presumptive period of one year following separation from service.  38 U.S.C.�� 1101(3), 1112(a); 38 C.F.R. �� 3.307(a), 3.309(a).  For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection.  38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).

A disability which is proximately due to, or the result of, a service-connected disease or injury shall be service connected.  38 C.F.R. � 3.310.  Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

Here, the Board observes that aggravation, according to the Court, constitutes "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence."  Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019).  Consequently, "aggravation beyond natural progression" inquiries should not be limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression.

In determining whether service connection is warranted for a disability, 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 the relative weight of evidence is against the claim, in which case the claim is denied.  38 U.S.C. � 5107.

Evidence and Analysis

A review of the Veteran's service treatment records (STRs) provides initial guidance.

In an April 1992 STR ("screening note of acute medical care"), a clinician indicated that the Veteran sought treatment for viral symptoms (vomiting and digestive system pain).  Under the coding or algorithm section, the clinician noted an absence of head trauma (last 72 hours) and absence of vomiting.  The Veteran endorsed symptoms of nausea and vomiting exclusively.

Upon a November 1992 "Ranger School" report of medical examination, a clinician reported a normal evaluation of the lower extremities; head, face, neck, and scalp; neurological status; and psychiatric status.

In an August 1993 STR ("screening note of acute medical care"), a clinician noted that the Veteran sought an influenza symptomatology reevaluation.  Under the coding or algorithm section, the clinician noted an absence of head trauma and "vomiting blood coffee grounds substance.  The Veteran conveyed that he was experiencing nausea; headaches; muscle aches; dizziness; and severe pain radiating through the spinal column.

In a December 1993 STR ("screening note of acute medical care"), a clinician noted that the Veteran complained of fever and discomfort at the spine.   Under the coding or algorithm section, the clinician noted an absence of head trauma (last 72 hours) and presence of bloody coffee ground vomit.  The Veteran conveyed that he was experiencing dizziness; weakness; blurred vision; and neck pain "all the way down to his buttocks".

In a January 1995 STR, a clinician reported that the Veteran sought treatment for left knee pain.  During this encounter, the clinician reported that the Veteran's right knee was stable.

In an August 1995 report of mental status evaluation, a clinician indicated that the Veteran's behavior and thought content were normal.  The Veteran maintained full alertness and full orientation; thought content was clear; memory was good; and mood/affect was unremarkable.

In his August 1995 report of medical history, the Veteran stated that he was in "fair health with LBP [lower back pain] and left knee".  The Veteran indicated that he had had or had swollen or painful joints; leg cramps; arthritis, rheumatism, or arthritis; and 'trick' or locked knee.  In the explanation section of this report, the Veteran reported that "after a certain walking distance, I feel dizzy".  The Veteran did not report that he had had or had paralysis; depression or excessive worry; loss of memory; or periods of unconsciousness.

The Veteran reported for a VA general examination in March 1996.  A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols").  The Veteran endorsed lower back, neck, and left knee pain.  This clinician reported no anomalous findings (disease or injuries) of the musculoskeletal system (to include the right knee).  Also, the clinician reported that the Veteran neurological status was fully normalno references whatsoever to either dizziness, migraine, or brain anomalies, symptomology, or disorders.

In a May 2005 VA telehealth note, a representative wrote that the Veteran called to seek guidance for endorsed symptoms of dizziness and weakness, adding that he "nearly fell out" the day prior.

In a December 2007 VA progress note, a clinician reported that the Veteran's proprioception at the knee was intact.

In a December 2009 VA progress, the Veteran indicated that he experienced dizziness and blurred vision.

Upon a January 2010 VA magnetic resonance imaging (MRI) of the brain, a clinician reported extensive nonspecific white matter changes in bilateral frontal and parietal lobes, and to lesser extent posterior temporal lobes as described.  This clinician opined that the findings were nonspecific, and there was no objective evidence of abnormal fluid collection.

In a June 2020 VA neurology resident note, a resident noted that the Veteran had a history of migraine headaches, and he reported that the Veteran would report for a follow-up visit after a plan for increasing medication dosage.  The Veteran conveyed that he deals with migraines by either sleeping or coming to the ED and getting a shot.  According to the Veteran, there have been approximately 7 migraine bouts since his last visit at the end of May 2010.  Prior to migraines, the Veteran reported that he sees little stars. The characteristics of these migraines vary but usually manifest as throbbing pain in posterior occipital traveling to front with associated muscle tightening.  The Veteran reported photophobia; phonophobia; occasional nausea; vomiting; and dizziness.

In a July 2010 progress note, a VA physician indicated that Veteran endorsed "breakthrough headaches"; however, that the Veteran did not start a regimen of the drug Gabapentin.  Upon initial pain assessment, there was headache and eye pain which was sharp in quality; soreness; aching.  Other symptoms included nausea; disrupted sleep; diminished energy; and diminished physical activities.  The Veteran also endorsed pressure behind the eyes.

In March 2011, the Veteran reported for a VA joints examination.  The clinician followed VA exam protocols.  Upon evaluation, the Veteran commanded right knee flexion to 140 degrees and extension to zero degrees.  Upon disquisition of the report, the clinician provided no abnormal right knee diagnoses.

Other VA progress notes from 2011 include extensive lay endorsements of headache symptoms.

In a January 2013 VA polytrauma progress note, a clinician reported that the Veteran's polytraumatic head injuries history, without indicating from whence this extensive narrative of significant head trauma was derived.   This history, again without reference to any evidence documenting incurrence in STRs, included a 1992 5-7' jump from a helicopter in which the Veteran experienced a "jiggle" of the brain.  In 1993, again with no reference to source, the Veteran sustained a traumatic brain injury (TBI) where he fell on concrete steps.  Consequently, there were symptoms of dizziness; disorientation; blurred vision; and constant migraine.  And, in 1995, the Veteran slipped on ice and hit his head, reportedly losing consciousness for one-to-two minutes.  The symptoms for this fall included disorientation; blurred vision; light sensitivity; memory problems; sleep problems; and stunted hand-eye coordination.  The Board acknowledges these accounts and considers them carefully, however, throughout the extensive evidentiary development of these issues, there is a total lacuna of supporting competent medical evidence which coincides with the head trauma events and the highly specificized findings of expert neurologists.  The VA polytrauma team dealt with the Veteran many years after this cluster of injuries.  Thus, as far as past diagnoses of TBI are concerned, the Board finds that this evidence warrants highly diminished probative weight.

Upon recitation of these events, the clinician reported that the Veteran conveyed that he started to experience dizziness and equilibrium problems in 2010.  This clinician added that assessment of the brain MRI, as noted above, and a motor vehicle accident (MVA).  The clinician opined that the Veteran mentioned the MVA, but advanced that he did not hurt his head.

In February 2013, the Veteran reported for a battery of VA examinations.  The VA clinician followed VA exam protocols.

Upon the knee conditions examination, the clinician did not report abnormal findings for the right knee (unlike the left knee where x-ray imaging showed degenerative joint disease).

Upon a VA headaches examination, the clinician provided a diagnosis of tension headaches.  The clinician opined that the Veteran did not have characteristic prostrating attacks of migraine headaches.

In an October 2013 VA progress note, a resident reconveyed the historical account as to the Veteran's fall on concrete steps in service.  The resident also took note of the other specificities of the January 2013 VA polytrauma progress note.

Upon an April 2015 VA brain MRI, a clinician provided findings of extensive scattered multifocal bilateral cerebral white matter disease with minimal interval progression since 2012.  As was the case in the past, the clinician indicated that these MRI findings were of uncertain etiology.

Upon a September 2015 VA pain assessment, the Veteran reported perceived pain at the head, back, neck, shoulders, right knee, and right ankle.

In February 2017, the Veteran reported for a VA knee conditions examination.  The clinician followed VA exam protocols.  As to the right knee, the Veteran commanded flexion to 120 degrees and there was extension to zero degrees.  While there was objective evidence of pain, the clinician opined that this pain was not production of functional loss on the Veteran's ability to work.  See Saunders, 886 F. 3d 1356 (holding in part that (pain alone can constitute a "disability" under � 1110, because pain can cause functional impairment of earning capacity).

In February 2018, VA received the Veteran's Social Security Administration (SSA) adjudication materials and medical records.  In the medicalvocational assessment, an evaluator indicated that the Veteran's ability to work must be limited to unskilled work due to an affective disorder.  No analogous findings were rendered as to the four instant claimed disabilities.

In July and August 2018, the Veteran reported for a battery of VA evaluations.  In each examination instance, the clinician followed VA exam protocols.  (As to opinions, clinicians followed VA exam protocols as practicable).

Upon a right knee opinion, the clinician provided a diagnosis of minimal right knee osteoarthritic changes without acute fracture of subluxation.  After careful contemplation of the totality of evidence, a clinician rendered fully negative etiological opinions as to the Veteran's right knee disability.  As to service connection on a direct basis, the clinician provided a supporting rationale infused with evidence (or lack thereof).

[The Veteran's] claims file is negative for [an STR] record for right knee condition.  [Consequently], for the right knee diagnosis, it is less likely than not that the disorder arose in service or is otherwise related to service.

As to service connection on a secondary basis, the clinician provided a rationale based upon a review of pertinent medical literature.  Here, the clinician conveyed that,

[There] is no peer reviewed evidence that support the claim that left knee pain and [left knee degenerative joint disease proximately} cause pain in right knee.  Medical literature does not support this [contention].  Therefore. it is less likely than not that the claimed condition has been [...] worsened beyond normal progression by a service-connected disability.

As to aggravation, this clinician indicated an inability to determine a baseline level of severity based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the Veteran's service-connected disabilities.  Regardless of an established baseline, this clinician opined that the Veteran's right knee disorder was not at least as likely as not aggravated beyond its natural progression by a service-connected disorder.  As a rationale here, the clinician re-stated that there was no peer-reviewed evidence that supports the claim that left knee pain and degenerative joint disease cause pain in the right knee and that the medical literature does not support this.

Upon the VA opinion focalized on migraine disorder and brain disorder, the clinician rendered fully negative etiological opinions based upon a comprehensive review of the relevant evidence of record.  As to service connection on a direct basis, the clinician provided a supporting rationale infused with evidence (or lack thereof).

[The Veteran's] claims file is silent for the diagnosis of headache or brain condition during service.  Therefore, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.

And, as to entitlement on a secondary, the clinician again provided a rationale infused with evidence (or lack thereof).

There is no objective evidence that showed that the Veteran's headache and brain condition was aggravated by any service-connected condition. Therefore, no nexus or plausible secondary relationship is established.

And, in an elucidation of this opinion, the clinician conveyed that,

The Veteran reports headaches that [are] associated with dizziness, blurry vision, flashes of light and tingling sensation on the tip of his fingers and toes and he was diagnosed with migraine with aura.  There is no peer reviewed evidence that support the claimed condition, headaches are caused by his neck pain or caused by his brain lesions.  The two [disabilities] are not medically related. The claimed disorder is a separate entity entirely from the service-connected [disability] and unrelated to it.  The medical literature does not support a medical relationship. (The order of cited text changed to improve understanding.)

Upon a VA ear conditions (including vestibular and infectious conditions), after contemplating the evidence of record, the clinician rendered negative etiological opinions.  As a rationale, the clinician opined that the Veteran's condition was acute with no evidence of chronicity of care.  Specifically, this clinician indicated that the Veteran separated form service in 1996 and claimed dizziness for the first time in 2011, 15 years after separation from active-duty service.  The clinician added that there are no medical records showing chronicity of care over 15 years after separation from service, therefore a nexus has not been established.

In a June 2021 medical opinion focalized of dizziness, a clinician rendered a negative etiological opinion based upon contemplation of the totality of extant evidence of record.  As a supporting rationale for this opinion, the clinician documented that the report of medical history and examination in August 1995 were negative for a vertigo or dizziness condition. The clinician also referenced a November 2012 neurology note that documented subjective symptoms for dizziness starting around 2006.  Moreover, the clinician noted the July 2018 VA report documented no evidence of dizziness and a normal examination.  As to the issue of aggravation, this clinician indicated an inability to determine a baseline level of severity of the claimed dizziness based upon the medical evidence available prior to aggravation or the earliest medical evidence following aggravation by the Veteran's service-connected disabilities.  Regardless of an established baseline, the clinician opined that the Veteran's claimed dizziness was not at least as likely as not aggravated beyond its normal progression.

Pursuant to the Board's latest remand in July 2022, VA clinicians performed a battery of addendum opinions in September 2022.  As practicable for an opinion, clinicians followed VA exam protocols.

As to the right knee disorder, the clinician rendered wholly negative etiological opinions.  As a rationale to supported such, the clinician provided the following rationales:

As to direct service connection, to include presumptive entitlement (38 C.F.R. �� 3.307(a), 3.309(a):

Right knee joint DJD is less likely than not incurred from active service or related to active service based on medical records containing earliest mention of right knee complaint or abnormal findings noted in March 2003 from working on cars where [the Veteran] had to bend down frequently.  [X-ray of] right knee [on] July 2009 was normal.  C and P exam in July 2018 report[ed] DJD of right knee which suggests current right knee condition was not due to active service or related to active service.

Arthritis of the right knee [..] less likely than not manifested within one year of the Veteran's separation from active duty in February 1996 (i.e., by February 1997) based on medical records containing earliest mention of right knee complaint or abnormal findings noted in March 2003 from working on cars where [the Veteran] had to bend down frequently.  X-ray [of] right knee [in] July 2009 [was] normal.  [The] C and P exam in July 2018 report[ed] DJD of right knee which suggests current right knee condition did not manifest within a year after discharge.

As to secondary service connection:

Right knee joint DJD is less likely than not incurred from compensation for his service connected conditions that include adjustment disorder with mixed anxiety and depressed mood; degenerative disc disease, lumbar spine to include thoracic spine disability; cervical spine strain; radiculopathy, left lower extremity; radiculopathy, right lower extremity; right upper extremity radiculopathy; left upper extremity radiculopathy; degenerative joint disease, left knee; left knee instability; tinnitus; and left sensorineural hearing loss based on medical records containing earliest mention of right knee complaint or abnormal findings noted in March 2003 from working on cars where he had to bend down frequently.  X-ray [of the] right knee in July 2009 [was] normal.  [The] C and P exam in July 2018 reported DJD of right knee and clinical notes in March 2007, August 2007, July 2011, July 2012, November 2012, November 2018, September 2020, April 2022 reporting normal gait which suggest current right knee condition was not due compensation of his active service or related to active service conditions.

In an addendum pertaining to secondary service connection based upon obesity, the clinician stated that,

Obesity was less likely than not a substantial factor in causing or aggravating his right knee disorder based on medical records containing earliest mention of right knee complaint or abnormal findings noted in March 2003 from working on cars where he had to bend down frequently, earliest notation of obesity was noted in January 2013 BMI 30.9.  [C]linical notes in March 2007, August 2007, July 2011, July 2012, November 2012, November 2018, September 2020, April 2022 reporting NORMAL GAIT, C and P exam in 3/2011 [reported] normal gait and normal right knee joint.  [The] C and P exam in July 2018 report[ed] DJD of right knee with normal gait which suggests current obesity condition was not a substantial factor or aggravating factor to development of his right knee disorder but from his work on cars and other employment. right knee joint would have occurred or worsen regardless of his obesity due to fact that he worked on cars frequently with frequent bending as noted in March 2003 working on cars where he had to bend down frequently.

As to the migraine disorder, the clinician rendered a wholly negative etiological opinion.  As rationales to support such,

As to direct service connection:

Migraine HA is less likely than not incurred from active service based on medical records containing no clinical notes throughout active service of HA, clinical note in February 2010 reporting HA early in life while at school and aggravated by MVA in May 2007, clinical note in May 2005 reporting migraine HA, clinical note March 1997 and April 1997 personality evaluation reviewed which suggest current migraine HA was not due to active service but incurred prior to service and worsen after MVA in 2007.

As to secondary service connection:

Migraine [headache] HA is less likely than not aggravated from service connected conditions including adjustment disorder with mixed anxiety and depressed mood; degenerative disc disease, lumbar spine to include thoracic spine disability; cervical spine strain; radiculopathy, left lower extremity; radiculopathy, right lower extremity; right upper extremity radiculopathy; left upper extremity radiculopathy; degenerative joint disease, left knee; left knee instability; tinnitus; and left sensorineural hearing loss based on medical records containing no clinical notes throughout active service of HA, clinical note in February 2010 reporting HA early in life while at school and aggravated by MVA in May 2007 hitting his face on steering wheel with lip laceration, clinical note in May 2005 reporting migraine HA, clinical note in November 2012 reporting HA in AM with vertigo which suggest current migraine HA was not aggravated by active service conditions but worsen after MVA in 2007.

As to the brain disorder, the clinician rendered a wholly negative etiological opinions as to service connection.  As rationales to support such,

As to direct service connection:

Brain disorder is less likely than not incurred from active service based on medical records containing clinical note in March 1997 and April 1997 reviewed of personality changes/cognitive issues, earliest imaging study in January 2010 reporting nonspecific white matter changes (of unknown significance) which suggest brain [disorder] from the MRI brain is less likely than not incurred from active service but most likely incurred from prior service HAs

As to secondary service connection:

Brain disorder is less likely than not aggravated from service-connected conditions including  adjustment disorder with mixed anxiety and depressed mood; degenerative disc disease, lumbar spine to include thoracic spine disability; cervical spine strain; radiculopathy, left lower extremity; radiculopathy, right lower extremity; right upper extremity radiculopathy; left upper extremity radiculopathy; degenerative joint disease, left knee; left knee instability; tinnitus; and left sensorineural hearing loss based on medical records containing clinical note in March 1997 and August 1997 reviewed of personality changes/cognitive issues, earliest imaging study in January 2010 MRI brain reporting nonspecific white matter changes (of unknown significance) which suggest brain d/o from the MRI brain is less likely than not aggravated from service connected conditions including  adjustment disorder with mixed anxiety and depressed mood; degenerative disc disease, lumbar spine to include thoracic spine disability; cervical spine strain; radiculopathy, left lower extremity; radiculopathy, right lower extremity; right upper extremity radiculopathy; left upper extremity radiculopathy; degenerative joint disease, left knee; left knee instability; tinnitus; and left sensorineural hearing loss but most likely incurred from prior service HAs.

As to the dizziness, the clinician rendered a wholly negative etiological opinions as to service connection.  As rationales to support such,

As to direct service connection:

There is no diagnosis of dizziness.  Therefore, dizziness is less likely than not incurred from active service based on latest exam in 2018 reporting no diagnosis of dizziness which suggest dizziness did not incurred from active service.

As to secondary service connection:

There is no diagnosis of dizziness per C and P exam in July 2018.  Therefore, dizziness is less likely than not aggravated from active service conditions including thoracic spine disability; cervical spine strain; radiculopathy, left lower extremity; radiculopathy, right lower extremity; right upper extremity radiculopathy; left upper extremity radiculopathy; degenerative joint disease, left knee; left knee instability; tinnitus; and left sensorineural hearing loss based on latest C and P exam in July 2018 reporting no diagnosis of dizziness which suggest dizziness was not aggravated by his service connected conditions.

In January 2023, the Veteran's representative submitted a brief.  In pertinent part, the representative recapitulated the Veteran's contentions, identified relevant evidence, and advanced that the benefit of doubt doctrine favored granting service connection for the Veteran's claims.

The Veteran believes that a right knee disability was incurred in service (or proximately caused or aggravated in a secondary sense by his service-connected disability (left knee)).  While the Veteran is competent to report discernable symptoms and report etiological opinions of competent clinicians (Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428), the evidence of record fails to disclose that the Veteran has training or expertise in orthopedics or podiatry to render complex etiological opinions.

Thus, upon an exhaustive review of the record, neither the Veteran nor his representative has offered any competent clinical or scientific evidence to support his service connection claims.  A Veteran still ultimately bears some burden of production. 38 U.S.C. � 5107(a); Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006).  Furthermore, a claimant, such as the Veteran, has some responsibility to cooperate in the development of all facts pertinent to his claim and that the duty to assist is not a one-way street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Board recognizes that the Veteran believes the theories of entitlement that he advances; however, lay beliefs do not rise to the level of affirmative competent medical or scientific evidence.  38 C.F.R. � 3.159(a)(1).

As already articulated, arthritis (here degenerative joint disease/osteoarthritis) of the right knee is a presumptive disease under the provisions of 38 C.F.R. �� 3.307(a), 3.309(a).  However, the evidence of record fails to disclose that this right knee arthritis was either diagnosed or manifested to a compensable degree within one year of the Veteran's separation from active-duty service.  Hence, service connection is not possible for the right knee disability presumptively.

The present disability element has been established.  Nevertheless, the persuasive weight of competent and probative evidence fails to establish an in-service incurrences, predicate, or cause upon which a nexus can be drawn.  Saunders, 886 F. 3d 1356.  Stated differently, other than the Veteran's conjecture, there is no evidence that these disabilities were incurred in active-duty service.  Again, the Board identifies the August 1995 report of medical history, in which the Veteran stated that he was in "fair health with LBP [lower back pain] and left knee".  The Veteran made no such representation as to the right knee ot the other contended disabilities qua disabilities.

As to the Veteran's claim to entitlement on a secondary basis, as discussed above, neither the Veteran nor his representative have not submitted any evidence to support these contentions.  Consequently, the possibility or granting service connection for these disabilities is foreclosed on this basis.  38 C.F.R. � 3.310; Allen, 7 Vet. App. 439; Ward, 31 Vet. App. 233.

The Board assigns substantial weight to the VA examinations of record.  As articulated above, the clinicians reviewed the claims file; considered the Veteran's lay complaints of his medical history; and conducted appropriate and copious evaluations.  Perhaps most importantly, these clinicians provided robust evidence-based and medically informed rationales to support each and every negative etiological opinionnotably through each theory of entitlement to service connection advanced.

Therefore, after much consideration and analysis, the Board finds that the weight of probative evidence in not at least in relative equipoise so as to find that service connection is warranted for these four disabilities.  As such, there is no doubt to resolve.  38 U.S.C. � 5107.

John R. Doolittle, II

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. J. Komins, 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.


judge_norm: T BERRY

disposition: dismissed

condition: ptsd

text:
Citation Nr: 23010000
Decision Date: 02/16/23	Archive Date: 02/16/23

DOCKET NO. 18-42 394
DATE: February 16, 2023

ORDER

Entitlement to service connection for an acquired psychiatric disability, to include persistent depressive disorder (also claimed as posttraumatic stress disorder (PTSD), adjustment disorder and depression) is dismissed.

FINDING OF FACT

During the period on appeal, the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, to include persistent depressive disorder (also claimed as PTSD, adjustment disorder and depression) has been approved by the Regional Office and there no longer remains allegations of errors of fact or law for appellate consideration.

CONCLUSION OF LAW

The criteria for dismissal of the issue of entitlement to service connection for an acquired psychiatric disability, to include persistent depressive disorder (also claimed as PTSD, adjustment disorder and depression) has been met.  38 U.S.C. � 7105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 1999 until her honorable discharge in June 2002 and on active duty in the Mississippi Army National Guard from December 2003 until her honorable discharge in January 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Regional Office of the United States Department of Veterans Affairs (VA).

In July 2019, the Board remanded the case to the Regional Office for further development.  Specifically, the most recent Board remand directed the Regional Office to schedule the Veteran for a VA examination to determine the nature and etiology of any current psychiatric disability.  In response, the Regional Office obtained a VA examination in January 2020 and granted service connection in the August 2020 rating decision, effective June 28, 2013.

Dismissal of Appeal

The Veteran asserts that she is entitled to service connection for an acquired psychiatric disability.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. � 7105.

Subsequent to the July 2019 Board remand, in the August 2020 Rating Decision, the Regional Office granted service connection for an acquired psychiatric disability, to include persistent depressive disorder (also claimed as PTSD, adjustment disorder and depression), effective June 28, 2013.

(Continued on the next page)

Therefore, in the present case, there remain no allegations of errors of fact or law for appellate consideration because the Regional Office granted the Veteran's claim(s).  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Deemer, 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.


judge_norm: D MARTZ AMES

disposition: remanded

text:
Citation Nr: 23011000
Decision Date: 02/22/23	Archive Date: 02/22/23

DOCKET NO. 17-66 474
DATE: February 22, 2023

REMANDED

Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) before March 14, 2016, and greater than 70 percent thereafter is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from December 1967 to December 1969.

This matter comes before the Board of Veterans' Appeals (Board) on from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

A September 2016 rating decision, in part, increased the Veteran's rating for PTSD, effective March 14, 2016.

The Veteran was scheduled for a hearing in August 2021 and did not report or provide good cause for his failure to report.  38 C.F.R. � 20.704.  The Board, however, notes that per the treatment records, dated in June 2022, the Veteran, during the appeal period, had a stroke and is currently a resident at a VA nursing home.  This is good cause for not reporting to a hearing.  As the Board is herein remanding the above-said issue, the Veteran and his attorney are reminded that he has the right to request a hearing when the issues are returned to the Board.  Quinn v. Wilkie, 31 Vet. App. 284, 290 (2019).

The issue was previously before the Board in October 2021 and remanded.  The RO was mandated to obtain outstanding VA and private treatment records.  The VA treatment records were associated with the claims file.  In October 2021, the RO sent the Veteran release forms for his private treatment records and informed him that he could also provide the records himself.  Neither the Veteran nor his attorney replied.  The Board finds that there has been substantial compliance with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Entitlement to a disability rating greater than 50 percent for PTSD before March 14, 2016, and greater than 70 percent thereafter is remanded.

The record shows that he has been residing in a nursing home where he has been bedridden.  The Mental Status Examination Reports (MSEs), although continuously found him oriented to person and place, recently found that he "overestimates/forgets limitations."  The MSEs have also continually noted that his mood, thought process, thought content, memory, insight, and judgment, were unable to be assessed (UTA).

During a May 2022 Mental Health Consultation, it was noted that the Veteran was on Sertraline and Mirtazapine daily, and the plan was to increase Sertraline.

As there is an indication that the Veteran's PTSD may have worsened since his last VA examination in September 2016, a current examination is warranted to determine the severity of his disability.  Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); 38 C.F.R. � 3.326 (a).

Accordingly, the issue is REMANDED for the following action:

1. Schedule the Veteran for a VA telehealth or physical examination to determine the current severity of his PTSD.  The entire claims file and a copy of this remand must be made available to the clinician for review.

The examiner must provide all findings, along with a complete rationale for any opinions provided.

2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided.  If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures.

3. Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC), and allow the applicable time for response.  Then, return the case to the Board.

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N. Stevens, 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.


judge_norm: REBECCA N POULSON

text:
Citation Nr: 23012000
Decision Date: 02/27/23	Archive Date: 02/27/23

DOCKET NO. 18-44 113
DATE: February 27, 2023

ORDER

A reduction in evaluation from 20 percent to 10 percent for right knee instability effective March 3, 2018 was improper, and a 20 percent evaluation is restored.

A reduction in evaluation from 20 percent to 10 percent for left knee instability effective March 3, 2018 was improper, and a 20 percent evaluation is restored.

REMANDED

Entitlement to a disability rating higher than 20 percent for right knee instability is remanded.

Entitlement to a disability rating higher than 20 percent for left knee instability is remanded.

FINDING OF FACT

The reduction in the disability ratings for bilateral knee instability from 20 percent to 10 percent was not based on improvement in the ability to function under the ordinary conditions of life and work.

CONCLUSIONS OF LAW

1. The criteria for restoration of a 20 percent disability rating for right knee instability, effective March 3, 2018, has been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.105, 3.343, 3.344.

2. The criteria for restoration of a 20 percent disability rating for left knee instability, effective March 3, 2018, has been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.105, 3.343, 3.344.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from March 1991 until his honorable discharge in March 2015. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

This matter is before the Board on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the ratings for bilateral knee instability. The Veteran filed a Notice of Disagreement with respect to the reductions and the lower ratings. The August 2018 Statement of the Case characterized the issues on appeal as increased rating claims, but included law and regulations applicable to rating reductions. The Veteran's substantive appeal continued to seek higher ratings and disagreed with the reductions. Thus, both the reductions and the increased rating claims are on appeal.

1. Restoration of a 20 percent rating for right knee instability.

2. Restoration of a 20 percent rating for left knee instability.

In November 2016, the AOJ granted entitlement to service connection for right and left knee instability with an evaluation of 20 percent effective September 1, 2016, under Diagnostic Code (DC) 5257. In April 2018, the AOJ reduced the evaluation for right and left knee instability to 10 percent disabling, effective March 3, 2018.

The Veteran contends he is entitled to restoration of a 20 percent rating for his right knee instability, and restoration of a 20 percent rating for his left knee instability. The Board agrees.

Procedurally, because the Veteran's overall combined evaluation for compensation was unaffected by the April 2018 rating reduction, and thus there was no actual reduction in his benefit payment, the RO was not required to observe the usual due process protections which are set forth at 38 C.F.R. � 3.105(e). See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that the provisions of 38 C.F.R. � 3.105(e) do not apply where the overall compensation paid to the Veteran is not reduced).

The 20 percent ratings for the Veteran's right and left knee instability were in effect for less than five years.

Substantively, the regulations provide that a rating at the same level for less than five years may be reduced if there is a reexamination showing improvement in the disability. 38 C.F.R. � 3.344(c). However, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See, e.g., Faust v. West, 13 Vet. App. 342, 349 (2000). The provisions of 38 C.F.R. �� 4.1, 4.2, and 4.10 also require that a reduction in rating be based upon review of the entire history of a veteran's disability.

A rating reduction focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.

In determining whether a reduction was proper, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence.

The question of whether a disability has improved involves consideration of the applicable rating criteria.

Prior to the February 7, 2021 amendments, under DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is slight. A 20 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is moderate. A 30 percent rating is warranted for recurrent subluxation or lateral instability of the knee that is severe. 38 C.F.R. � 4.71a. DC 5257.

The words "slight", "moderate", and "severe" used in Diagnostic Code 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. � 4.6.

Effective February 7, 2021, DC 5257 provides separate criteria for ratings based on recurrent subluxation or lateral instability and patellar instability.

For recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), or walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), or walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), or walker), and bracing for ambulation. 38 C.F.R. � 4.71a, DC 5257.

For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id.

Factual Background

In June 2016, the Veteran presented to the Beckley VA Medical Center (VAMC) with complaints of chronic knee pain. Radiographs of the right knee demonstrated extensive degenerative changes and small right knee effusion; radiographs of the left knee demonstrated status post cruciate ligament repair, with extensive degenerative changes with effusion.

In July 2016, the Veteran presented to the Beckley VAMC. He reported chronic bilateral knee pain, worsening with prolonged walking and standing, especially on uneven terrain. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress, but end points maintained. Medial and lateral joint spaces were nontender. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. The VA physician assessed bilateral knee traumatic arthropathy with chronic ACL deficiency.

In September 2016, the Veteran was afforded a VA examination. During the examination the Veteran reported frequent constant knee pain. He reported flare-ups, described as increased knee pain with prolonged walking, standing, and sitting, as well as navigating stairs. He reported functional loss/functional impairment described as limitation in "all outdoor activities." The examiner diagnosed bilateral patellofemoral pain syndrome, degenerative arthritis, post ACL repair with meniscectomy, and chronic ACL deficiency.

Initial range of motion for right knee flexion was measured from 0 to 110 degrees, and extension was normal to 0 degrees, with objective evidence of pain on motion. The examiner remarked, pain on exam causes functional loss as the veteran would not be able to squat. He had tenderness or pain to palpation for joint line or soft tissue of mild patella tendon. Muscle strength testing for flexion revealed some resistance (4/5) for flexion, and normal (5/5) for extension. There was a history of recurrent subluxation, recurrent effusion, and moderate lateral instability. Joint stability testing was normal for anterior and posterior instability, and medial and lateral instability was 1+ (0-5 millimeters). The Veteran had a meniscus condition (semilunar cartilage condition) of meniscal tear with frequent episodes of joint pain and joint effusion.

Initial range of motion for left knee flexion was measured from 0 to 115 degrees, and extension was normal to 0 degrees, with objective evidence of pain on motion. The examiner remarked, pain on exam causes functional loss as the veteran would not be able to squat. He had tenderness or pain to palpation for joint line or soft tissue of posterior knee around the joint line. Muscle strength testing for flexion revealed some resistance (4/5) for flexion, and normal (5/5) for extension. There was a history of recurrent subluxation, recurrent effusion, and severe lateral instability. Joint stability testing was normal for anterior and posterior instability, and medial and lateral instability was 1+ (0-5 millimeters). The Veteran had a meniscus condition (semilunar cartilage condition) of meniscal tear with frequent episodes of joint "locking", joint pain, and joint effusion. The Veteran required the occasional use of assistive devices (braces). Lastly, regarding functional impact, the examiner remarked, the Veteran would have difficulty doing physical labor that required climbing, prolonged walking, standing, or lifting.

In October 2016, the Veteran presented to the Beckley VAMC with complaints of chronic knee pain, worsening with prolonged walking and standing, especially on uneven terrain. His desire was to continue with the same regimen (injections) if possible and avoid surgery. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress but with end points maintained. Medial and lateral joint spaces were nontender. Crepitus range of motion. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. The Veteran underwent Supartz injection bilateral knees.

Throughout 2017, the Veteran presented to the Beckley VAMC with reports of chronic knee pain, worsening with prolonged walking and standing, especially on uneven terrain. He stated that he wanted to avoid total knee replacement for as long as possible. Physical exam demonstrated antalgic gait without assistive device. Exam of both knees revealed slight flexion contractures. There was fullness in popliteal fossa bilaterally. There was laxity with varus and valgus stress but with end points maintained. Medial and lateral joint spaces were nontender. Crepitus range of motion. Patellar grind and inhibition test were positive. Stable posterior drawer sign. There was increased pain with Lachman's test and anterior drawer sign. He underwent corticosteroid and Supartz injections, bilateral knees.

In January 2017, the Veteran stated he wanted to avoid total knee replacement for as long as possible. In April 2017, the VA physician noted, "the Veteran is too young at this time for consideration of a TKA." In July 2017, the Veteran reported chronic knee pain worsening with weight bearing activity and knees giving way. He was remaining as active as possible, and he was trying to wait for surgical intervention.

In February 2018, the Veteran presented to the Beckley VAMC. He reported chronic bilateral knee pain, worsening with weight bearing activity, as well as uneven terrain ambulation; swelling; and frequent "giving way or buckling." He stated he was strongly considering total knee replacement.

In March 2018, the Veteran was afforded a VA examination. During the examination the Veteran reported contain pain in both knees, worsening when navigating stairs or walking inclines. He reported flare-ups and functional loss/functional impairment. The examiner diagnosed bilateral knee degenerative arthritis with meniscal tear and anterior cruciate ligament tear and knee instability and left knee moderate joint effusion. The examiner remarked the Veteran's diagnoses had changed. The examiner explained, "both the meniscus and cruciate ligaments are necessary for stability of a normal, healthy knee. When either, or both, of these structures have been altered or damaged the knee joint can become unstable to varying degrees depending on the degree of change in either of these anatomical structures. Such as the case with this veteran's knees."

Initial range of motion for right and left knee flexion was measured from 0 to 140 degrees, and extension was normal to 0 degrees. There was pain with weight bearing. Muscle strength testing was normal. There was no history of recurrent subluxation and lateral instability. There was a history of recurrent effusion left knee. Joint stability testing was normal for posterior, medial, and lateral instability, and anterior instability was 1+ (0-5 millimeters). The Veteran had bilateral meniscus condition (semilunar cartilage condition) of meniscal tear, with history of meniscal repair with ACL repair. Lastly, regarding functional impact, the examiner remarked, the Veteran would have poor tolerance for prolonged walking (incline/decline) and climbing.

Analysis

Given the similarities in the Beckley VAMC records, and the September 2016 and March 2018 examination findings, as described above, the Board finds that the nature and severity of the Veteran's right and left knee instability does not support a finding that there was an improvement in his ability to function under ordinary conditions of life and work. Thus, the reductions were improper. In addition, the RO decision reducing the Veteran's ratings did not address whether there was an actual improvement in his ability to function under ordinary conditions of life and work. Rather, the RO appears to have essentially analyzed the reductions as it would a claim for an increased rating.

In considering the entire record and viewing all the evidence in the light most favorable to the Veteran, (i) the reduction of the disability rating for right knee instability was not proper, and restoration of the 20 percent rating, effective March 3, 2018, is warranted; and (ii) the reduction of the disability rating for left knee instability was not proper, and restoration of the 20 percent rating, effective March 3, 2018, is warranted.

REASONS FOR REMAND

1. Entitlement to an increased rating higher than 20 percent for right knee instability is remanded.

2. Entitlement to an increased rating higher than 20 percent for left knee instability is remanded.

Although further delay is regrettable, the Board finds a remand is necessary to endure due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. � 5103A; 38 C.F.R. � 3.159.

The Veteran contends he is entitled to an increased rating higher than 20 percent for his service-connected right and left knee instability. The Veteran was last afforded a VA examination in March 2018.

Although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disabilities to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). As nearly five years have passed since the most recent VA examination that addressed the nature and severity of the Veteran's right and left knee instability, the Board finds that remand for a new VA examination is warranted.

To this end, the Board also notes that VA treatment records in the Veteran's claim file appear to be incomplete. Here, the last VA treatment record is from March 2018. Consequently, the Board finds that remand is required for the VA to fulfill its duty to the Veteran and to acquire updated treatment records regarding his right and left knee instability.

These matters are REMANDED for the following action:

1. Obtain VA treatment records from March 2018.

2. Schedule the Veteran for an examination with an appropriate clinician, who has not previously examined the Veteran, to assess the nature and severity of the Veteran's service-connected right knee instability and left knee instability.

The entire claims file, to include a copy of this Remand, must be made available to the examiner and the examination report should reflect that the file was reviewed.

The examiner should assess instability in terms of joint stability testing (Lachman test, Posterior drawer test, Valgus pressure to knee in extension with 30 degrees of flexion and Varus pressure to knee in extension with 30 degrees of flexion).

The examiner must also determine whether the Veteran's service-connected left knee instability has manifested in any of the following symptoms or impairments since February 7, 2021 (based on examination findings or a review of the claims file):

3. Recurrent subluxation or instability with one of the following: A) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; OR B) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation;

(a)	recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, AND a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation;

(b)	patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane or walker;

(c)	patellar instability with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker.

Note: In this context, "patellofemoral complex" consists of the quadriceps tendon, the patella, and the patellar tendon.

If any requested findings are not possible without resort to mere speculation, not feasible, medically contraindicated, raise a risk of injury to the Veteran, or otherwise cannot be provided, then the examiner must explain why with a full rationale.

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Grace Johnk, 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.