Citation Nr: 1328630 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-50 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals, right bunionectomy. 2. Entitlement to an initial rating in excess of 10 percent for reactive gastropathy, esophagitis and gastritis. 3. Entitlement to an initial rating in excess of 30 percent for migraine cephalgia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty for various periods, including from April 1991 to August 1991, from October 2001 to July 2002, and from May 2006 to July 2007, and in the Air National Guard for in excess of twenty years. These claims come before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a VA Form 9 (Appeal to Board of Veterans' Appeals) dated December 2010, the Veteran requested a hearing before the Board. She withdrew the hearing request in March 2011. Other than an Appellant's Brief, in which the Veteran's representative elaborates on prior substantive contentions, VA's paperless claims processing system (Virtual VA) includes no additional pertinent documents for consideration in support of these claims. FINDINGS OF FACT 1. Residuals of the Veteran's right bunionectomy include constant pain in the great toe, elicited by activity and relieved by rest or medication, and a level, non-tender scar measuring 7 by 0.1 centimeters, causing no disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, keloid formation, pigmentary changes or abnormal texture. 2. The Veteran's digestive system disability, diagnosed as reactive gastropathy, esophagitis, gastritis, a hiatal hernia and gastroparesis, is productive of considerable or moderately severe impairment of health resulting from persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, substernal pain, material weight loss and vomiting. 3. The Veteran's migraine headaches occur frequently, reportedly as often as three to four times monthly, and necessitate the use of prescription medication, but are not productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for residuals, right bunionectomy, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, 4.118, Diagnostic Codes 5280, 5283 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2007). 2. The criteria for entitlement to an initial 30 percent rating for reactive gastropathy, esophagitis and gastritis are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.114, Diagnostic Codes 5399-7346 (2012). 3. The criteria for entitlement to an initial rating in excess of 30 percent for migraine cephalgia are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). When a claimant seeks service connection for a disability, the VCAA notice must apprise the claimant of all five elements of the claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). Notice The RO provided the Veteran VCAA notice on her claims by letters dated June 2008, July 2008 and September 2012. The RO sent the third letter after initially adjudicating the Veteran's claims. That letter is therefore untimely. The RO cured this timing defect later, however, by readjudicating these claims in a March 2013 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate her claims and identify the type of evidence that would best do so. They include all necessary information on effective dates in the event higher initial ratings are granted. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They specifically indicate that the RO requested records from Wilford Hall Medical Center dated from 1992 to 1995, but that it received a response that there were no records on file. They also indicate that the RO would make reasonable efforts to assist the Veteran in obtaining any other outstanding evidence provided she identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notice. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). She does not assert that VA failed to comply with VCAA's notice provisions. Assistance The RO also satisfied its duty to assist the Veteran in the development of these claims by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to her claims, including service and post-service private treatment records. The RO also afforded the Veteran a VA examination of the disabilities at issue in this case, during which examiners discussed the severity of those disabilities, and obtained addenda on outstanding medical questions. When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). As the examination the RO afforded the Veteran took place in 2008, the RO scheduled the Veteran for additional VA examinations in 2012. However, the Veteran failed to report for the examination. In a written statement dated in May 2013, the Veteran indicated that she had no other information or evidence to submit and asked that her case be sent to the Board for further appellate consideration as soon as possible. She did not ask that the examinations be rescheduled. The Veteran does not assert that there are any other outstanding records that must be obtained in support of these claims. She also does not assert that the report of the 2008 examination is inadequate. Analysis The Veteran seeks higher initial ratings for residuals of her right foot bunionectomy, a digestive system disability and migraines. She claims that the ratings initially assigned these disabilities do not accurately represent the severity of all associated symptoms. According to a history reported during a 2008 VA examination, the Veteran underwent a bunionectomy in 1990, which did not improve and in fact worsened her right great toe condition. She alleged that she experiences constantly aching, occasionally sharp pain in that toe on physical activity. She contends that the pain is relieved with rest or medication and, with these measures, she is able to function. She denies physician-recommended incapacitation, other types of treatment, functional impairment and a prosthesis. According to written statements she submitted in January 2010 and March 2011, she continues to have digestive system symptoms on a daily basis that have worsened, causing an increase in discomfort, difficulty swallowing, chest pain, nausea, a lack of appetite and sustained weight loss. She alleged that these symptoms necessitated testing, which revealed gastroesophageal reflux disease (GERD), moderately severe esophagitis, a hiatal hernia, an ulcer and moderately severe gastritis, require the use of prescription medication and regulation of her diet, and interfere with her activities of daily living and her overall feeling of well being. She contends that the medication has provided no relief. According to the history she reported during a 2008 VA examination, she also has severe, unilateral headaches, usually in the temporal region, with associated nausea, photophobia and phonophobia. These headaches allegedly occur three to four times monthly, last two to three days, and necessitate bedrest and the use of multiple prescription medications, but otherwise cause no functional impairment. The Board has considered the Veteran's contentions in conjunction with all medical documents of record, and finds that the preponderance of the evidence is against the assignment of higher initial ratings for residual of the right bunionectomy and headaches. As discussed below, residuals of the Veteran's right bunionectomy include constant pain in the great toe, elicited by activity and relieved by rest or medication, and a level, non-tender scar measuring 7 by 0.1 centimeters, causing no disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, keloid formation, pigmentary changes or abnormal texture. The Veteran's migraine headaches occur frequently, reportedly as often as three to four times monthly, and necessitate the use of prescription medication, but are not productive of severe economic inadaptability. The Board also finds that the evidence supports the assignment of a higher initial rating for the Veteran's digestive system disability. This disability, diagnosed as reactive gastropathy, esophagitis, gastritis, a hiatal hernia and gastroparesis, is productive of considerable or moderately severe impairment of health resulting from persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, substernal pain, material weight loss and vomiting. It is not productive of severe impairment of health. Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45); see also Johnson v. Brown, 9 Vet. App. 7 (1996) (provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion). With any form of arthritis, painful motion is an important factor. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). A compensable rating under DC 5003 and § 4.59 for painful motion is assignable where arthritis is established by X-ray findings, even if there is no actual limitation of motion of the affected joint. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In such a case, painful motion is considered limited motion even though a particular range of motion is possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Limitation of motion may be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2012). Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). That pain must actually affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In other words, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Residuals of Right Bunionectomy The RO granted the Veteran service connection for right pes planus, status post bunionectomy with scar and plantar fasciitis in a November 2008 rating decision. It assigned this disability an initial noncompensable rating. In a December 2009 Decision Review Officer decision, the RO granted the Veteran a separate noncompensable rating for right pes planus and plantar fasciitis and increased the rating assigned residuals of the right bunionectomy to 10 percent, pursuant to Diagnostic Code 5280. The severity of the now separately rated pes planus and plantar fasciitis is not at issue in this appeal. DC 5280 provides that a 10 percent rating is assignable for unilateral hallux valgus, operated with resection of metatarsal head or severe, if equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, DC 5280 (2012). Also potentially applicable to this claim are DC 5283, which governs ratings of the tarsal and metatarsal bones, and DCs 7801 to 7805, which govern ratings of scars. DC 5283 provides that a rating in excess of 10 percent is assignable for malunion or nonunion of the tarsal or metatarsal bones if moderately severe or severe. 38 C.F.R. § 4.71a, DC 5283 (2012). If there is actual loss of use of the foot, the disability is to be rated 40 percent. 38 C.F.R. § 4.71a, DC 5283, Note (2012). During the course of this appeal, VA amended the rating criteria for skin disabilities, which include scars. See 73 Red. Reg. 54,708 (Sept. 23, 2008). The amended criteria are effective for claims filed on or after October 23, 2008 or where the claimant requests consideration under the amended criteria. The Veteran in this case initiated the claim at issue prior to October 23, 2008 and her statements include no explicit request to have this claim evaluated under the amended criteria. The former criteria are thus applicable here. According to those criteria, scars, other than of the head, face, or neck, which are deep or cause limited motion, are to be rated under DC 7801. DC 7801 provides that a 10 percent rating is assignable for such scars when the area or areas exceed 6 square inches (39 sq. cm.). A 20 percent rating is assignable when the area or areas exceed 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2007). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Notes (1), (2) (2007). Scars, other than of the head, face, or neck, which are superficial and do not cause limited motion, are to be rated under DC 7802. DC 7802 provides that a 10 percent rating is assignable for area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2007). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (2) (2007). Under DC 7803, a 10 percent rating is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2007). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7803, Note (2) (2007). Under DC 7804, a 10 percent rating is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804 (2007). Other types of scars are to be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2007). The Veteran underwent a bunionectomy on her right foot during service. Since discharge, she has had residuals of this procedure evaluated during a VA examination conducted in July 2008. She has not sought treatment for such residuals. According to the report of the VA examination, these residuals include: (i) a surgical scar on the dorsal aspect of the right great toe measuring 7 by 0.1 centimeters, which is level and non-tender and without disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, keloid formation, pigmentary changes or abnormal texture; and (ii) reported, but not objectively confirmed pain. There is no evidence of neurological involvement and x-rays revealed no abnormalities other than pes planus, rated separately. According to the VA examiner, all of the Veteran's conditions, including residuals of her bunionectomy, only minimally affect her ability to perform her usual occupation and daily activities. The Veteran is in receipt of the maximum rating assignable under DC 5283. In the absence of evidence of moderately severe to severe malunion or nonunion of the tarsal or metatarsal bones, not shown on VA examination, or of a larger, painful, unstable, symptomatic or functionally impairing scar, also not shown on examination, a rating in excess of 10 percent is not assignable under any previously noted DC for residuals of the Veteran's right bunionectomy. Digestive System Disability The RO granted the Veteran service connection for a digestive system disability, characterized as reactive gastropathy, esophagitis and gastritis, in a December 2009 Decision Review Officer Decision. It assigned this disability an initial noncompensable rating. In a March 2013 Decision Review Officer decision, the RO increased the rating assigned the disability to 10 percent, effective July 29, 2007, the date the RO received the Veteran's claim, pursuant to DCs 7399-7346. When a particular disability is not listed among the DCs, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a veteran's symptoms. 38 C.F.R. § 4.27 (2012). Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the assigned rating. 38 C.F.R. § 4.27. In this case, DC 7399 refers to digestive disorders in general while the more specific DC 7346 refers to hiatal hernias. DC 7346 provides that a 60 percent rating is assignable when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is assignable when there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal arm or shoulder pain which is productive of considerable impairment of health. A 10 percent rating is assignable for two or more of these symptoms but of less severity. 38 C.F.R. § 4.114, DC 7346 (2012). For the purposes of evaluating conditions in § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2012). Also potentially applicable to this claim is DC 7306, which governs ratings of marginal ulcers. DC 7306 provides that a 10 percent rating is assignable for mild marginal ulcers with brief episodes of recurring symptoms once or twice yearly. A 20 percent rating is assignable for moderate marginal ulcers with episodes of recurring symptoms several times a year. A 40 percent rating is assignable for moderately severe marginal ulcers with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 60 percent rating is assignable for severe marginal ulcers, same as pronounced with less pronounced and less continuous symptoms with definite impairment of health. A 100 percent rating is assignable for pronounced marginal ulcers, periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss; totally incapacitating. 38 C.F.R. § 4.114, DC 7306 (2012). The Veteran underwent abdominal surgery at age 13 for diverticulitis of the small bowel (Mechel's), subacute appendicitis and abdominal adenitis in the ileocecal mesentery. During service she experienced symptoms of a digestive system disability, including a feeling of a swollen throat, difficulty swallowing, epigastric pains and tenderness, nausea, diarrhea and vomiting. Testing, including an abdominal and upper gastrointestinal series and an ultrasound of the gallbladder, revealed no abnormalities. Examiners diagnosed GERD and prescribed medication for these symptoms and recommended a restricted diet . Since discharge, the Veteran has sought treatment and undergone testing for these symptoms and reported weight loss. According to the report of a VA examination, conducted in July 2008, the Veteran has intermittent dysphagia and globus hystericus symptoms that occur daily and are not effectively relieved by medication. A blood test showed a higher MCH, which the examiner indicated was clinically insignificant. He also indicated that there was no pathology on VA examination to account for the Veteran's complaints. In August 2008, the Veteran saw a private gastroenterologist who conducted an endoscopy and gastric biopsies, which revealed reactive gastropathy, but not H. pylori infection. The physician noted that the Veteran's globus seemed to be due to anxiety disorder, rather than GERD. As alleged, further testing conducted in 2008 and 2009 revealed reactive gastropathy, moderately severe esophagitis, a hiatal hernia in the lower third of the esophagus, and moderately severe gastritis, but no evidence of GERD. Testing conducted in January 2010 revealed mild esophagitis, a sliding hiatal hernia in the esophagus, mild gastritis in the antrum, body of the stomach, cardia, incisura and on the greater curvature of the stomach body, and a stomach ulcer. By November 2010, the ulcer was no longer evident, the gastritis was again noted to be moderately severe and the Veteran also had delayed gastric emptying. The Veteran has not reported incapacitating episodes of digestive system symptoms and no medical professional has indicated that she has anemia as a result of her digestive system disability. A higher initial rating under DC 7306 is therefore not assignable. In addition, although she has some of the symptoms noted in the criteria for a 60 percent rating under DC 7346, such as vomiting and weight loss, she does not assert and the medical evidence does not establish that such symptoms result in impairment of health that is more than moderately severe or considerable. An initial rating of 30 percent, not higher, may be assigned the digestive system disability under DC 7346. Migraine Celphalgia The RO granted the Veteran service connection for migraine cephalgia in a November 2008 rating decision. It assigned this disability an initial noncompensable rating. In a December 2009 Decision Review Officer Decision, the RO increased the rating assigned the disability to 30 percent, effective July 29, 2007, the date the RO received the Veteran's claim, pursuant to DC 8100. DC 8100 provides that a 50 percent rating is assignable for very frequent, completely prostrating and prolonged attacks of migraines productive of severe economic inadaptability. A 30 percent rating is assignable for characteristic prostrating attacks occurring on an average once a month over last several months. 38 C.F.R. § 4.124a, DC 8100 (2012). During service the Veteran experienced increasingly frequent headaches, which reportedly required the use of a lot of two types of medications. Magnetic resonance imaging revealed no abnormalities. Following discharge she continued to experience frequent headaches that reportedly did not respond to medication and often confined her to bedrest. There is no evidence of record confirming physician-prescribed bedrest or indicating that, however severe the headaches, they are productive of severe economic inadaptability. Rather, during the July 2008 VA examination, the VA examiner found that all of the Veteran's medical conditions, including her headaches minimally affect her ability to perform her usual occupation and daily activities. An initial rating in excess of 30 percent is thus not assignable under DC 8100. Extraschedular Ratings In certain circumstances, a claimant may be assigned a higher initial or increased rating on an extraschedular basis. The question of whether such a rating may be assigned on such a basis is a component of a claim for a higher initial or increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular rating if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). If the claimant or the evidence raises the question of entitlement to a higher initial or increased rating on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular rating is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular rating is inadequate. The Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. The Veteran has not raised, nor does the evidence suggest the question of entitlement to a higher initial rating for residuals of a right bunionectomy, a digestive system disability or migraine cephalgia on an extraschedular basis. Referral for consideration of this matter is thus not necessary. ORDER An initial rating in excess of 10 percent for residuals, right bunionectomy, is denied. An initial 30 percent rating for reactive gastropathy, esophagitis and gastritis is granted. An initial rating in excess of 30 percent for migraine cephalgia is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs