Citation Nr: 1639467 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 15-04 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for insomnia. 2. Entitlement to service connection for hypertension. 3. Entitlement to a rating in excess of 10 percent for a headache disability. 4. Entitlement to an initial rating in excess of 10 percent for hypothyroidism. 5. Entitlement to an initial rating in excess of 10 percent for chronic constipation. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Ivey-Crickenberger, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1978 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for insomnia and hypertension and entitlement to ratings in excess of 30 percent for migraines; and 10 percent for hypothyroidism and chronic constipation are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's headache disability is manifested by nearly daily headaches that are only relieved with rest and isolation and require the Veteran to lie down. CONCLUSION OF LAW The Veteran's headache disability more closely approximates the 30 percent criteria for migraines. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Principles for Rating Disabilities Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Rating Schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, must be avoided. Id. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings for distinct periods of time, based on the facts, may be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's migraine headaches are currently rated 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks occurring on average one every two months over the last several months are rated a 10 percent disability. Migraines that occur on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at a maximum 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," and neither has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Analysis - Migraines The Veteran received a VA neurological examination for his headache claim in April 2014. He reported that he got headaches every day and they lasted approximately 70 percent of the day. He reported that he got some minor relief from massaging his temples, drinking lots of water, and taking a nap during his planning period (the Veteran is a school teacher). He also reported that he laid down for a nap immediately after getting home to escape the pain and that medication, both over-the-counter and prescribed, was rarely effective in reducing the head pain. He also reported that his headaches were aggravated by light, noise and working on the computer. He stated that the headaches sometimes went away after he had been home for a while, as long as he stayed in a quiet and dark place. In his February 2015 substantive appeal, the Veteran asserted that he had been suffering from migraine headaches for the past 18 years, with episodes occurring 20 to 30 times per month. A treatment note form a private physician, Dr. M.S., dated in June 2015 reflects the Veteran reported that his migraines had increased in severity over the previous year and he sometimes had several weekly. Although it is not completely clear whether the Veteran's headaches require him to lie down; they do appear to occur on a nearly daily basis; last approximately 70 percent of the day, and require him to lied down for what he describes as naps, when possible, to escape pain. His description does approximate a prostrating attack; as such, a 30 percent evaluation for migraines is appropriate. The criteria for the next higher (maximum) rating for migraines, 50 percent, are not shown by the record. In order to qualify for the maximum rating, the headache disability must be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The record does not show that that the Veteran's headaches are completely prostrating or prolonged. The Veteran is currently employed as a teacher. See April 2014 VA examination report. While it is evident that his headache disability has a negative impact on his well-being and work, the evidence does not show that it is not productive of severe economic inadaptability. ORDER A rating of 30 percent for migraines is granted. REMAND Migraines Dr. M.S.'s June 2015 note indicates that the migraine disability has worsened since the April 2013 examination. As such, the Veteran is entitled to a new examination. Snuffer v. Gober, 10 Vet App 400 (1997). Hypothyroidism & Chronic Constipation In regard to the current appeal regarding the rating for hypothyroidism, the Veteran's most recent VA examination in April 2014 is not adequate. The examiner indicated that the only current finding, sign, or symptom attributable to the hypothyroid condition was continuous medication. The Veteran reported that the condition reduced his tolerance to heat and inhibited his ability to rest and concentrate. Private medical records during the appeal period additionally reflect vitamin deficiencies and anemia of unstated etiology as well as fatigueability. These symptoms were not considered or discussed by the April 2014 VA examiner. In addition, the VA examiner did not document the presence or absence of symptoms that are specifically noted in the rating criteria for hypothyroidism, to include: muscular weakness, cardiovascular involvement, mental disturbance such as depression, sleepiness, or weight gain. As such, another examination is required on remand. In regard to the Veteran's current appeal for chronic constipation, the Board observes that the Veteran's original underlying claim was for chronic abdominal pain. The AOJ awarded service connection for chronic constipation and rated by analogy under 38 C.F.R. § 4.114, DC 7301 for adhesions of the peritoneum. The Veteran was diagnosed as having irritable bowel syndrome while he was on active duty. See July 1992 service treatment record. A January 2010 private treatment note from Jacksonville Center for Endoscopy reflects that the results of a flexible sigmoidoscopy suggested moderate colonic spasm consistent with irritable bowel syndrome. It is unclear why the AOJ did not rate the Veteran's gastrointestinal disability under a different diagnostic code. It is also unclear why the April 2014 VA thyroid examiner indicated that the Veteran's constipation did not correlate with the state of his thyroid function. Constipation is a known symptom of hypothyroidism and the Veteran's private physician Dr. V.G. has sent in correspondence indicating that the Veteran's severe constipation is a complication of his hypothyroidism. An addendum opinion is needed. Insomnia Insomnia is a reported side effect of Synthroid, the drug the Veteran uses to treat his service-connected thyroid disability. In addition, there are other risk factors for insomnia that may be directly or indirectly related to service. A medical opinion is required. Hypertension The Veteran's blood pressure was elevated on numerous occasions while he was on active duty. In addition, an April 1994 echocardiography report taken while the Veteran was in the military suggested a possible diagnosis of pulmonary hypertension. The Veteran has not been afforded a VA examination to determine the relationship of his hypertension to service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the Veteran's claims file to a medical professional to provide an opinion regarding whether current insomnia is related to a disease or injury in service, a service connected disability, or medication taken for such a disability. No physical examination is required, unless the examiner deems one necessary. The examiner should review the entirety of the claims file and respond to the following: (a) Is it at least as likely as not that the Veteran's insomnia is caused by any of his service-connected disabilities? (b) Is it at least as likely as not that the Veteran's insomnia is aggravated by any of his service-connected disabilities? VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. (c) Is it at least as likely as not that the Veteran's insomnia is caused or aggravated by medications used to treat his service-connected disabilities, to include Synthroid? The examiner should provide reasons for these opinions. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should provide a supporting rationale as to why the opinion cannot be made without resorting to speculation; whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 4. Schedule the Veteran for a VA hypertension examination. The examiner should review the claims file and respond to the following inquiries: (a) Is it at least as likely as not the Veteran's hypertension had onset in service? Please discuss the instances during service in which the Veteran had elevated blood pressure and the April 1994 echocardiography report suggesting a possible diagnosis of pulmonary hypertension. (b) Is it at least as likely as not the Veteran's hypertension was caused by his service-connected disabilities? (c) Is it at least as likely as not the Veteran's hypertension was aggravated by his service-connected disabilities? VA will not concede aggravation unless the baseline level of the non-service connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of non-service connected disease or disability. (d) Is it at least as likely as not the Veteran's hypertension was aggravated by any of the medications or treatments for his service-connected disabilities? The examiner should provide reasons for these opinions. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should provide a supporting rationale as to why the opinion cannot be made without resorting to speculation; whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 6. Then, refer the Veteran's claims file to a medical professional to provide an opinion regarding what gastrointestinal disabilities are related to service or the service connected constipation. No physical examination is required, unless the examiner deems one necessary. The examiner should review the claims file and respond to the following inquiries: (a) Identify each gastrointestinal disability present and/or diagnosed since April 2013. (b) Is it at least as likely as not each identified/diagnosed gastrointestinal disability had onset in service? (c) Is it at least as likely as not each identified/diagnosed gastrointestinal disability is a manifestation of a service-connected disability other than chronic constipation? (d) Is it at least as likely as not each identified/diagnosed gastrointestinal disability was caused by a service-connected disability? (e) Is it at least as likely as not each identified/diagnosed gastrointestinal disability was aggravated by a service-connected disability? The examiner should provide reasons for these opinions. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should provide a supporting rationale as to why the opinion cannot be made without resorting to speculation; whether the inability is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided. 7. Afford the Veteran a VA examination to evaluate the current severity of his migraines or headache disorder. The examiner should review the claims folder. The examiner should report the frequency and duration of any prostrating attacks and the economic impact of the disability. 8. After completing the above, and any additional notification and/or development deemed warranted by the record, readjudicate claims in light of all pertinent evidence and legal authority. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs