Citation Nr: 18156084 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 519A DATE: December 6, 2018 ORDER Entitlement to the sought 10 percent initial rating for tension headaches is granted. Entitlement to the sought 30 percent initial rating for the disability of gastroesophageal reflux disease (GERD) with gallbladder removal is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for lumbar spine intervertebral disc syndrome and degenerative arthritis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s tension headaches manifest in impairment essentially featuring prostrating attacks averaging one in two months. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s disability of GERD with gallbladder removal manifests in impairment essentially featuring persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for the sought initial disability rating of 10 percent for tension headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, and 4.124a, Diagnostic Code 8199-8100. 2. The criteria for the sought initial disability rating of 30 percent for GERD with gallbladder removal have been met. 38 U.S.C. §§ 1155, 5103, 5103A, and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, and 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to October 1997 and from November 2000 to July 2014. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In written correspondence submitted to VA in June 2018, the Veteran’s representative withdrew the prior request for a Board hearing. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the Court recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability. Id. at 39. In this case, the Board notes that the Veteran’s October 2014 notice of disagreement specified the disability rating he seeks for each disability on appeal, including his clear indication that he seeks a 10 percent rating for tension headaches and a 30 percent rating for GERD with gallbladder removal. Accordingly, the Board’s determinations in this decision that (1) a 10 percent rating is warranted for tension headaches and (2) a 30 percent rating is warranted for GERD with gallbladder removal represent complete grants of the Veteran’s appeals on those issues without discussion of entitlement to any higher rating assignments for those disabilities. Increased Rating Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, when a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter 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 layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. 1. Entitlement to the sought 10 percent initial rating for tension headaches is granted. The Veteran is requesting a 10 percent rating for his service-connected tension headaches. This increased rating claim arises from the initial rating assignment associated with the grant of service connection for the tension headaches effective from August 1, 2014. Throughout the period on appeal, the Veteran’s service-connected tension headaches disability has been rated as noncompensably (0 percent) disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100, as analogous to migraine headaches. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the manifestations of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identify the criteria used to evaluate that disability. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using 99 for the last 2 digits. 38 C.F.R. § 4.27. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. With less frequent attacks, a noncompensable 0 percent rating is for assignment. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that 38 C.F.R. § 4.7 is not applicable to Diagnostic Codes that apply successive rating criteria, such as Diagnostic Code 8100. See Johnson v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1253 (Sept. 19, 2018) (“the Court concludes that the Board was correct that DC 8100’s rating criteria are successive, rendering 38 C.F.R. §§ 4.7 and 4.21 inapplicable. In contrast, we conclude that § 4.3 remains applicable to DC 8100.”). The Board observes that Diagnostic Code 8100’s rating criteria are successive because the criteria of each lower disability rating is essentially included in the higher disability rating. The Rating Schedule does not define ‘prostrating.’ However, ‘prostration’ has been defined as complete physical or mental exhaustion. Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). ‘Prostration’ has also been defined as extreme exhaustion or powerlessness. Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p.1461, ‘prostration’ is defined as a marked loss of strength, as in exhaustion. See e.g. Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). A June 2014 VA headache examination report, prepared for rating purposes, is of record. The June 2014 VA examination report discusses that the Veteran “developed headaches post exposure to mortar round in 2003 while deployed to Iraq. He has had headaches since that time requiring ongoing care and treatment.” The report notes that the Veteran’s headaches are treated with Tramadol and Motrin. The report notes that the Veteran’s headache attacks include “Pulsating or throbbing head pain,” “Pain on both sides of the head,” “Sensitivity to light,” and “Sensitivity to sound.” The duration of a typical attack was noted to be “1-2 days.” The VA examiner responded “No,” to the question of whether the Veteran has “prostrating attacks.” The Veteran’s November 2014 VA Form 9 included his statement: “I have headaches at least 3 to 4 times a week, at day and at nights that I cannot even sleep. All this is in my records, I do not know how it was missed, but I had been complaining about headaches after I was hit with a mortar round in Iraq in my first deployment.” The Board notes that the Veteran’s service treatment records do document the Veteran’s headache problems during service. The Board finds that the evidence of record, including the Veteran’s competent and credible testimony describing the severity of his headaches, suggests a noteworthy degree of impairment associated with headaches. The Board must determine whether the shown impairment manifests in a severity of disability reasonably matching that contemplated by the criteria for a 10 percent rating. The most significant evidence against finding that the Veteran’s symptoms satisfy the criteria for a 10 percent rating is the June 2014 VA examiner’s response of “No” when asked if the Veteran suffered prostrating attacks. The Board has viewed this response in light of the fact that the term “prostrating attacks” is somewhat variably and imprecisely defined, and the VA examiner’s particular interpretation of “prostrating attacks” is not made clear by the VA examination report. The Board observes that one legitimate definition of “prostrating” is that presented in Stedman’s Medical Dictionary, 27th Edition (2000), p.1461, in which prostration is defined as a marked loss of strength, as in exhaustion. The Board also observes that the provisions of Diagnostic Code 8100 refer to “completely prostrating” attacks in the criteria for a 50 percent rating, suggesting that the “prostrating” attacks contemplated by a 10 percent rating need not be completely prostrating, but that a degree of prostration less than complete may be sufficient for a 10 percent rating. In the Board’s view, the symptoms described in the June 2014 VA examination report, together with the Veteran’s credible description of the headache attacks causing an inability to sleep and the well-documented long-term history of severe headaches, credibly depicts the level of impairment contemplated by a 10 percent rating. The Board finds that the shown impairment involves headache attacks resulting in a significant degree of exhaustion / prostration meeting the threshold of an average frequency of once every two months. The evidence in this case is not unequivocally clear, but the Board finds that reasonable doubt can be resolved in the Veteran’s favor to find that the Veteran’s headaches manifest in impairment that reasonably matches the degree contemplated by a 10 percent rating. A 10 percent rating under Diagnostic Code 8199-8100 is granted throughout the period on appeal in this case. The Board again notes that the Veteran’s October 2014 notice of disagreement specified the disability rating he sought for each disability on appeal, including his clear indication that he seeks a 10 percent rating for his headache disability. He does not contend that the criteria for any higher rating have been met or that a higher rating is otherwise warranted. Accordingly, the Board’s award of a 10 percent disability rating for the headache disability represents a complete grant of the Veteran’s appeal on this issue. 2. Entitlement to the sought 30 percent initial rating for the disability of GERD with gallbladder removal is granted. The Veteran is requesting a 30 percent rating for his service-connected GERD with gallbladder removal. This increased rating claim arises from the initial rating assignment associated with the grant of service connection for GERD with gallbladder removal effective from August 1, 2014. Throughout the period on appeal, the Veteran’s service-connected digestive disorder has been rated under Diagnostic Code 7399-7346, as analogous to disability predominantly featuring hiatal hernia. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the manifestations of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identify the criteria used to evaluate that disability. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using 99 for the last 2 digits. 38 C.F.R. § 4.27. With regard to coexisting abdominal conditions, VA regulation recognizes that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Board also notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under Diagnostic Codes 7301 to 7329, inclusive, and 7345 to 7348 inclusive, which include the schedular criteria for a hiatal hernia (Diagnostic Code 7346). The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7346, pertain to hiatal hernia. Under Diagnostic Code 7346, a 10 percent rating contemplates disability featuring two or more of the symptoms listed in the criteria for a 30 percent rating, but with “less severity.” A 30 percent rating contemplates persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Court has held that where rating criteria are worded in the conjunctive with the use of the word “and,” each of the specified criteria must be present to warrant the specified percentage requirements. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The holding in Camacho applies where the rating criteria are “successive,” meaning that the criteria for the lower rating plus additional criteria are required before the next higher rating is warranted. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In this case, the criteria for a 30 percent rating under Diagnostic Code 7346 arguably incorporate those required for the 10 percent rating, and thus are arguably “successive.” The Board notes that the criteria for a 10 percent rating refers to the symptoms being “of less severity” than, and thus perhaps not identical to, similar symptoms contemplated by the criteria for a 30 percent rating. To the extent that the criteria may be considered successive, all of the additional criteria would be required for the next higher rating of 30 percent. See Tatum, 23 Vet. App. at 156; Camacho, 21 Vet. App. at 360. A VA examination for the purposes of rating the Veteran’s service-connected GERD with gallbladder removal was performed in June 2014, and the report of this examination is of record. Significantly, the June 2014 VA examination report lists the Veteran’s signs and symptoms of GERD as: “Persistently recurrent epigastric distress,” “Pyrosis,” “Reflux,” “Regurgitation,” “Pain Substernal,” and “Nausea.” The VA examination report notes “4 or more” episodes of nausea per year (suggesting that the VA examiner was presented with multiple choices and selected the option reflecting the highest frequency of episodes contemplated by the disability questionnaire). The Board finds it noteworthy that the June 2014 VA examination report indicates that the Veteran’s pertinent symptoms include every aspect of disability listed in the criteria for a 30 percent rating with the exception of dysphagia (difficulty swallowing). In his November 2014 VA Form 9, the Veteran described that “[e]ven with my medication sometimes I get the same reactions every time I eat,” and he described the problem as “severe.” The Board finds that the evidence, featuring the June 2014 VA examination report, indicates that the Veteran experiences persistently recurrent epigastric distress, as is contemplated by the criteria for a 30 percent rating. The Board finds that the evidence, featuring the June 2014 VA examination report, indicates that the persistently recurrent epigastric distress comes with pyrosis and regurgitation and is accompanied by substernal pain, as is contemplated by the criteria for a 30 percent rating. The Board finds that the evidence reasonably indicates that such symptomatology is productive of a considerable impairment of health; the Veteran’s credible and competent description indicates that he experiences significant symptoms despite taking medication for treatment. The Board acknowledges a decision of the United States Court of Appeals for Veterans Claims (Court), which discussed the “ameliorative effects” of medication and how this impacts disability evaluations. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In Jones, the Court noted that, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Id. at 63. In this case, the Board has noted the indication of impairment that is not controlled by medication, as this is reflective of a greater degree of severity of the underlying disability than may be apparent during treatment; this finding is supportive of the Veteran’s claim. The Board’s analysis in this case shall not consider the ameliorative effects of the medication in assessing the severity of impairment. The currently assigned 10 percent rating contemplates disability featuring as few as two of the pertinent symptoms, whereas the Veteran’s disability picture appears to involve the entire set of disability manifestations contemplated by a 30 percent rating with the lone possible exception of dysphagia. Furthermore, the currently assigned 10 percent rating contemplates that the two symptoms be manifested with “less severity” than the disability picture contemplated by the criteria for a 30 percent rating. The Board does not find that the Veteran’s pertinent symptoms in this case are shown to manifest with lesser severity than the level contemplated by the inclusion of those symptoms in the criteria for a 30 percent rating. The evidence in this case is not unequivocally clear, but the Board finds that reasonable doubt can be resolved in the Veteran’s favor to find that the Veteran’s disability of GERD with gallbladder removal manifests in essentially the level of impairment contemplated by the criteria for a 30 percent rating, especially when looking past the ameliorative effects of the Veteran’s medications. A 30 percent rating under Diagnostic Code 7399-7346 is granted throughout the period on appeal in this case. The Board again notes that the Veteran’s October 2014 notice of disagreement specified the disability rating he sought for each disability on appeal, including his clear indication that he seeks a 30 percent rating for his disability of GERD with gallbladder removal. He does not contend that the criteria for any higher rating have been met or that a higher rating is otherwise warranted. Accordingly, the Board’s award of a 30 percent disability rating for the disability of GERD with gallbladder removal represents a complete grant of the Veteran’s appeal on this issue.   REASONS FOR REMAND 1. The issue of entitlement to an initial rating in excess of 10 percent for lumbar spine intervertebral disc syndrome and degenerative arthritis is remanded. The Board finds that a new VA rating examination is necessary to support adequately informed appellate review of this matter. The Veteran underwent a VA examination of his back disability for rating purposes in February 2015, and the report of this examination is of record. The February 2015 VA examination report notes that the Veteran reported “that flare-ups impact the function of the thoracolumbar spine (back),” such that the Veteran “has to sit or lay down after prolonged standing.” The VA examiner expressed inability to otherwise measure or estimate the degree of additional functional loss during flare-ups because: “It would be speculative to provide accurate ROMs [ranges of motion] during a flare or after repetitive use over time since there is no flare up at the time of the examination. I cannot provide this information based on a hypothetical situation.” The United States Court of Appeals for Veterans Claims (Court) has issued a significant opinion addressing whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that the Board may accept a VA examiner’s assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner’s conclusion is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the medical community at large and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. The February 2015 VA examination report does not comply with the requirements articulated in the Court’s holding in Sharp. The examiner did not present adequate findings regarding the Veteran’s flare-ups and any additional functional loss to allow the Board to make an informed determination as to whether the impairment may most nearly approximate the limitations of motion contemplated by the criteria for a higher rating. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Correia, 28 Vet. App. at 169-170. The February 2015 VA examination report does not present findings fully addressing the requirements explained by the Court in Correia. Accordingly, the Board finds that remand is necessary for a new VA examination (and to obtain a retrospective medical opinion) attempting to provide the complete information required by the Court’s holdings in Sharp and Correia. The matter is REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, schedule the Veteran for an examination of the severity of his service-connected back / lumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and with weight-bearing and without weight-bearing (including testing for pain). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies active motion, passive motion, pain with weight-bearing and without weight-bearing (to the extent medically appropriate) at each time the back disability was previously examined with documented range of motion testing for VA rating purposes. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If any sought opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any,   additional evidence would permit such an opinion to be made. A rationale should be provided for each medical opinion presented. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel