Citation Nr: 18149895 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-23 318 DATE: November 14, 2018 ORDER An initial rating of 10 percent for costochondritis is granted. Entitlement to an initial compensable rating for tension headaches is denied. REMANDED The issue of entitlement to a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), Helicobacter Pylori infection (H. Pylori infection), and hiatal hernia, to include as due to an undiagnosed illness, is remanded. The issue of entitlement to service connection for sleep disturbances, to include as due to an undiagnosed illness, is remanded. The issue of entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, costochondritis has been manifested by weakness, lowered fatigue threshold, and fatigue pain that has resulted in no more than moderate impairment to Muscle Group (MG) XXI. 2. Throughout the appeal period, tension headaches have manifested by pain managed by pain medication without prostrating attacks. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a disability rating of 10 percent for costochondritis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.56, 4.73, Diagnostic Code (DC) 5321 (2018). 2. The criteria for an initial compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to December 1991. He served in the Southwest Asia Theater of Operations during the Persian Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by Regional Offices (ROs) of the Department of Veterans Affairs (VA). In an August 2017 rating decision, the RO implemented a June 2017 Board decision granting service connection for cystitis, asthma, and irritable bowel syndrome (IBS). In June 2018, the Veteran appealed the assigned initial ratings. The RO has not certified the appeal to the Board. As such, these issues, in addition to an associated claim of entitlement to a total disability rating based on individual unemployability (TDIU), are not ripe for appellate review. See 38 C.F.R. §§ 19.36, 20.1304(a) (2018). The issues will be the subject of a later Board decision as appropriate. The Board also notes that the RO has acknowledged receipt of a notice of disagreement (NOD) with regard to the initial rating assigned for myalgias and paresthesias in a May 2018 rating decision. A remand of this issue is unnecessary. See Manlincon v. West, 12 Vet. App. 238 (1999). Increased Rating Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial compensable rating for costochondritis. In a March 2016 rating decision, the RO granted service connection for costochondritis and tension headaches and assigned noncompensable ratings. A March 2018 statement of the case (SOC) denied a higher initial evaluation for both disabilities. The Veteran timely filed a substantive appeal with respect to those issues, and the issues were certified in July 2018. The Veteran seeks an initial compensable rating for his service-connected costochondritis. Costochondritis is not listed in the rating schedule. Where a particular disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology, are closely analogous. 38 C.F.R. 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, because there is no specific diagnostic code for costochondritis, the RO rated the disorder under DC 5099-5024 of 38 C.F.R. § 4.71a. The Veteran’s representative contends in May 2018 correspondence that costochondritis should be rated under DC 5321. The Board agrees. The assignment of a particular DC is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as the Veteran’s relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. Pernorio, 2 Vet. App. at 629. Service connection for a disability is not severed simply because the situs of the disability, or the DC associated with it, is corrected to determine more accurately the benefit to which the veteran is entitled. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). The record indicates that symptoms associated with the Veteran’s costochondritis affect muscle group XXI, muscles of respiration (see e.g., August 2017 VA fee-based examination report). As such, the rating criteria of DC 5321 (i.e. function of muscles of respiration) more accurately reflect the Veteran’s disability picture. The Board therefore reassigns the disability rating from DC 5099-5024 to DC 5321. Under DC 5321, a slight injury warrants a noncompensable evaluation. A moderate injury warrants a 10 percent rating. A moderately severe or severe injury warrants a 20 percent rating. 38 C.F.R. § 4.73, DC 5321. Factors for consideration in the rating of muscle disabilities are set forth in 38 C.F.R. §§ 4.55 and 4.56. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). The type of injury associated with a slight muscle disability is a simple wound of muscle without debridement or infection. A history regarding this type of injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability. Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. A history regarding this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history regarding this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56(d)(4). Turning to the evidence of record, July 1991 private treatment records show the Veteran was involved in a motor vehicle accident during which he suffered pulmonary contusions. VA and private treatment records note complaints of chest pain. The Veteran underwent a VA examination in January 2016 for his chest pain. During the examination, the examiner found tenderness of the costochondral junctions and diagnosed the Veteran with costochondritis. The examiner reported that the condition did not affect his ability to work. The Veteran underwent a VA fee-based examination in August 2017 for his costochondritis. During the examination, the Veteran reported that he began experiencing palpitations and tenderness to his chest area in the early 2000’s. He also reported experiencing sharp pain and cramping sensations. The Veteran began noticing atrophy to his pectorals after the onset of his symptoms. The Veteran reported that deep respirations caused a sharp pain in his chest which radiated deep between his shoulder blades. The examiner reported that both sides of the Veteran’s group XXI muscles (muscles of respiration) were affected. The examiner also noted consistent weakness, lowered threshold of fatigue, and fatigue-pain that affected both sides of his respiration muscles. The examiner further reported that the Veteran did not have any scars associated with his muscle injury, muscle atrophy, or any x-ray evidence of retained metallic fragments. The examiner concluded that the Veteran’s costochondritis does not impact his ability to work. Based on this evidence, the Board finds that an initial rating of 10 percent is warranted for the Veteran’s costochondritis. VA and private treatment records show complaints of chest pain. The August 2017 examiner found consistent complaints of three of the six cardinal signs and symptoms of muscle disability, and after resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s service-connected disability has more nearly approximated a moderate disability throughout the pendency of this appeal. Accordingly, a 10 percent rating is warranted under DC 5321. The Board has also considered whether a rating in excess of 10 percent is warranted. However, the evidence does not show symptoms that are consistent with a moderately severe or severe impairment, including prolonged treatment or hospitalization during service or evidence of impaired respiratory function or decreased strength and endurance in the upper extremities. In this regard, the Board notes the Veteran has consistently reported pain and some fatigue with his condition, but has not asserted that he experiences weakness and loss of muscle power as a result of his costochondritis, or other functional loss in the costochondral junctions or upper extremities. Therefore, the Board finds that the Veteran’s costochondritis is moderate, at best, and warrants no more than a 10 percent rating under DC 5321. The Board has considered the use of staged ratings; however, the Veteran’s costochondritis has at no point during the entire period more nearly approximated the criteria corresponding to a higher rating. Accordingly, the application of a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an initial compensable rating for tension headaches. The Veteran seeks an initial compensable rating for tension headaches. The disorder has been rated as analogous to migraine headaches under DC 8100 of 38 C.F.R. § 4.124(a). Under DC 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on 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. The term “productive of severe economic inadaptability” means “producing” or “capable of producing” economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical Dictionary 1531 (32nd Ed. 2012), “prostration” is defined as “extreme exhaustion or powerlessness.” Turning to the evidence of record, private treatment records show complaints of headaches. A September 2007 private treatment record shows the Veteran complained of headaches with nausea and light dizziness during the previous two months. The Veteran underwent a VA examination for his tension headaches in January 2016. The Veteran reported that he experienced headaches on a daily basis. He reported that with regards to pain, his headaches were typically a 2 out of 10, but could be a 10 out of 10. He reported that he would take Advil and the pain would usually return to baseline within an hour. He also reported occasional tingling on his temples. The Veteran did not report associated visual disturbance, sensitivity to light or sound, nausea, vomiting, or limb symptoms. The Veteran reported that he has not missed work because of his headaches and that he works through his symptoms. The Veteran reported that he works full-time. The examiner noted that the Veteran experienced constant head pain that pulsated or throbbed on both sides of his head. The Veteran’s typical head pain lasted less than one day. The examiner did not find that the Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner also noted that the headaches do not impact the Veteran’s ability to work. Upon review of all of the evidence of record, the Board finds that an initial compensable rating is not warranted at any point during the appeal period. The private treatment records and the January 2016 VA examination report do not show that the Veteran’s headaches were prostrating as required for the next higher 10 percent rating. The Veteran has reported experiencing daily headaches that have resulted in head pain that pulsated or throbbed on both sides of his head. However, there is no evidence that the Veteran’s daily headaches have resulted in extreme exhaustion or powerlessness. The Veteran has reported that has not missed any work due to his headaches and is able to work through the symptoms. Thus, the evidence does not show that the Veteran’s tension headaches have manifested in or more nearly approximated characteristic prostrating attacks averaging one in two months over the last several months. The Board acknowledges the Veteran’s contention that the evidence of record supports an increased rating of at least 30 percent. The Veteran’s representative generally contends that the Veteran’s description of his own condition, including dizziness and nausea in a September 2007 private treatment record, pain levels of a 10 out of 10, use of medication, and constant or daily head pain, warrant a rating of at least 30 percent. However, because of the minimal frequency of the symptoms of dizziness, nausea, and pain levels of a 10 out of 10, the Board finds that these symptoms do not adequately reflect the Veteran’s entire disability picture. Additionally, as explained above, the Board does not find that the Veteran’s constant or daily head pain results in characteristic prostrating attacks. Thus, the Board finds that a compensable rating is not warranted. The Board has considered the use of staged ratings; however, the Veteran’s tension headaches have not at any point during the appeal period more nearly approximated the criteria corresponding to a 10 percent rating. Accordingly, the application of a staged rating is not warranted. Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27. Given the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of an initial compensable rating. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Hart, 21 Vet. App. at 505. In April 2016 correspondence, the representative raises the issue of extraschedular consideration. He contends that the focus on prostrating attacks is incorrect. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. Second, if the schedular evaluations do not contemplate the Veteran’s level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that all symptomatology and impairment caused by the Veteran’s tension headaches is contemplated by the schedular rating criteria. The schedular rating criteria of DC 8100 specifically provides for a rating based on painful headaches. Considering the lay and medical evidence, the Veteran’s tension headaches have primarily manifested with daily constant head pain that pulsated or throbbed. While the Veteran has infrequently reported dizziness and nausea associated with his headaches, such exacerbations and flare-ups also are contemplated by the schedular rating criteria. Thus, the Board finds that the symptomatology and impairment caused by the Veteran’s tension headaches are specifically contemplated by the schedular rating criteria. Given that the Board finds the Veteran does not meet the first Thun element, it need not address whether the disability reflects an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. Nonetheless, the Board finds the tension headaches do not rise to an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. The Veteran has reported that he has not missed work due to his headaches and works through the symptoms. Additionally, there is no evidence that the Veteran has been hospitalized for his headaches. In short, the effects of the Veteran’s disability have been fully considered and are contemplated in the rating schedule. The currently-assigned noncompensable schedular rating adequately contemplates the severity and nature of his tension headaches. Referral for an extraschedular rating is not warranted. REASONS FOR REMAND In January 2015 and June 2017, the Board remanded for further development the service connection claims for digestive, fatigue, and sleep disorders. Another remand is necessary because the remand directives have not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that claims of entitlement to service connection for chronic fatigue syndrome (previously claimed as fatigue) and sleep disturbances (previously claimed as sleep difficulty) were denied in a March 2004 rating decision. The Veteran did not appeal the decision so it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. However, in July 2012 and January 2018, relevant service treatment records that were not associated with the record at the time of the prior denial were obtained. As such, VA must consider the original service connection claims without regard to the finality of the March 2004 rating decision. 38 C.F.R. § 3.156(c). 1. Entitlement to a gastrointestinal disorder, to include GERD, H. Pylori infection, and a hiatal hernia is remanded. The Veteran contends that his gastrointestinal disorder is related to his military service, to include his service in the Persian Gulf War. He also contends that it is due to an undiagnosed illness or chronic, multisymptom illnesses. See August 2017 Correspondence. Most recently, the Board remanded this claim in June 2017 for a new VA examination. The Board’s remand directives requested the examiner, in rendering his opinion, to consider and discuss the Veteran’s credible exposure to chemical agents during service, as well as the Veteran’s contentions that the arduous physical activity he performed as an infantryman caused a hiatal hernia and esophageal symptoms. The Veteran subsequently underwent a VA examination in August 2017 for his gastrointestinal disorder. However, while the examiner considered and discussed the Veteran’s credible exposure to chemical agents during service, he did not consider or discuss the Veteran’s contentions that the physical activity he performed as an infantryman during service caused a hiatal hernia and his esophageal symptoms. Given this oversight, an addendum opinion should be obtained. See Stegall, supra. 2. Entitlement to service connection for sleep disturbance is remanded. The Veteran contends that he experiences sleep disturbance due to undiagnosed illness or chronic multisymptom illness or otherwise related to active service. The Board most recently remanded this claim for a VA examination in June 2017. The Board’s remand directives instructed the RO to provide the Veteran with a VA examination by an appropriate medical professional to determine the current nature and etiology of his claimed sleep disturbance. A review of the record shows that no such examination was provided. As such, another remand is required to provide the Veteran with a VA examination into this claim. See Stegall, supra. 3. Entitlement to service connection for chronic fatigue syndrome is remanded. The Veteran contends that he suffers from chronic fatigue syndrome that is related to his service in the Persian Gulf War. As with the claims above, the Board most recently remanded this claim for a VA examination in June 2017. The Board’s remand directives instructed the RO to schedule the Veteran for an examination with a rheumatologist or neurologist in order to determine the current nature and etiology of his claimed chronic fatigue syndrome. While the Veteran did subsequently undergo a VA examination in August 2017 for his claimed chronic fatigue syndrome, the examination was not conducted by a rheumatologist or neurologist per the Board’s remand directives. After providing the August 2017 examination, the RO sought to comply with the Board’s directive and schedule the Veteran with a rheumatology specialist. See May 2018 Report of General Information and May 2018 Correspondence. The Veteran agreed to see the specialist, but only once the Compensation and Pension Office provided him with a letter with a date and time of the appointment. As the RO did not provide such a letter, the Veteran was not scheduled for an examination with the specialist. Given this deficiency, another remand is required to provide the Veteran an examination with the appropriate specialist. See Stegall, supra. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2018 to the present. 2. Obtain an addendum opinion from the August 2017 examiner, or from another appropriate examiner if the examiner is unavailable, regarding the Veteran’s claimed gastrointestinal disorder, to include GERD, H. Pylori infection, and a hiatal hernia. The claims file, and a copy of this Remand, must be reviewed by the examiner. The examiner must opine whether the Veteran’s current gastrointestinal disorder, to include his current GERD, now resolved hiatal hernia, and resolved H. Pylori infection, at least as likely as not was caused by, or is otherwise related to, the reported arduous physical activity the Veteran performed as an infantryman. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA examination by an appropriate examiner to determine the current nature and etiology of reported sleep disturbance. The examiner must review the claims file and a copy of this Remand. The examiner should note and detail all reported symptoms of the Veteran’s sleep disturbance. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms of his sleep disturbance. The examiner should specifically state whether sleep disturbance is attributed to a known clinical diagnosis, and if so, whether it is at least as likely as not that the diagnosis is related to service. If any symptoms of the Veteran’s sleep disturbances have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran’s symptoms of sleep disturbance are manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements regarding in-service exposure to chemical agents. 4. Schedule the Veteran for a VA examination by a neurologist to determine the current nature and etiology of the Veteran’s reported chronic fatigue syndrome. The examiner must review the claims file and a copy of this Remand. The examiner should note and detail all reported symptoms of the Veteran’s reported chronic fatigue syndrome. The examiner should conduct a comprehensive general medical examination, and provide details about the onset, frequency, duration, and severity of all symptoms of his reported chronic fatigue syndrome. The examiner should specifically state whether the Veteran’s symptoms, to include his subjective complaints of fatigue, are attributable to a known clinical diagnosis, to include any currently diagnosed bladder and/or urinary condition, and if so, whether it is at least as likely as not that the disorder is related to service. If any symptoms have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran’s symptoms are manifestations of an undiagnosed illness or part of a medically unexplained multi-symptom illness under 38 C.F.R. § 3.317, to include chronic fatigue syndrome. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements regarding in-service exposure to chemical agents. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel