Citation Nr: 18160879 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-52 709 DATE: December 28, 2018 ORDER Entitlement to an initial 10 percent rating for Raynaud’s syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial 10 percent rating for a gastrointestinal disability is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial 30 percent rating for a migraine headache disability is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The issue of entitlement to a rating in excess of 10 percent for Raynaud’s syndrome. The issue of entitlement to a rating in excess of 10 percent for a gastrointestinal disability. The issue of entitlement to a rating in excess of 30 percent for a migraine headache disability. The issue of entitlement to an initial compensable rating for prostatitis. The issue of entitlement to an initial compensable rating for dermatitis. The issue of entitlement to an initial compensable rating for restless leg syndrome (RLS). The issue of entitlement to an initial compensable rating for hemorrhoids. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s Raynaud’s syndrome was manifested by characteristic attacks occurring at least one to three times per week. 2. For the entire period on appeal, the Veteran’s gastrointestinal disability was manifested by at least mild gastric ulcer symptoms; gastroesophageal reflux disease (GERD) symptoms, including pyrosis, reflux, and sleep disturbance; and irritable bowel syndrome (IBS) symptoms, including abdominal cramping and diarrhea. 3. For the entire period on appeal, the Veteran’s migraine headache disability was manifested by characteristic prostrating attacks occurring at least once a month. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent evaluation for Raynaud’s syndrome are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.104, Diagnostic Code 7117 (2017). 2. The criteria for an initial 10 percent evaluation for a gastrointestinal disability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.114, Diagnostic Codes 7304, 7305, 7319, 7346 (2017). 3. The criteria for an initial 30 percent evaluation for a migraine headache disability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to September 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted entitlement to service connection and assigned noncompensable ratings for Raynaud’s syndrome, a gastrointestinal disability, a migraine headache disability, prostatitis, dermatitis, RLS, and hemorrhoids. The Veteran timely perfected an appeal to the ratings assigned. See April 2014 Notice of Disagreement; October 2016 Statement of the Case; October 2016 VA Form 9. Jurisdiction currently lies with the RO in Roanoke, Virginia. As will be discussed in further detail below, the Board finds that the evidence currently of record is sufficient to award the Veteran initial ratings of 10 percent for Raynaud’s syndrome, 10 percent for a gastrointestinal disability, and 30 percent for a migraine headache disability throughout the appeal period. However, the question of whether even higher ratings are warranted at any point requires further development. Accordingly, the Board has bifurcated these three increased rating issues as reflected above. Such bifurcation of these issues permits a grant of increased ratings for which the evidence of record shows the Veteran is entitled, without delay of this grant of benefits awaiting additional development relating to whether the Veteran is entitled to even higher ratings. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). Increased Ratings Initially, the Board notes that the Veteran filed his initial claim for service connection for various disabilities in May 2013. He was discharged in September 2013. In November 2013, the Veteran underwent numerous VA examinations. However, in the December 2013 rating decision on appeal, the RO did not list as evidence the November 2013 VA examinations, nor did it discuss the examinations in assigning noncompensable ratings. As noted by the Veteran in his April 2014 notice of disagreement, the RO listed a (nonexistent) March 2013 VA examination as evidence; however, this was before the Veteran even filed his initial claim. As discussed in more detail below, the November 2013 VA examinations clearly support compensable ratings for Raynaud’s syndrome, a gastrointestinal disability, and a migraine headache disability. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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 Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A. Raynaud’s Syndrome The Veteran is in receipt of a noncompensable rating for Raynaud’s syndrome pursuant to Diagnostic Code 7117 (Raynaud’s syndrome). He contends that a higher rating is warranted. The criteria for rating Raynaud’s syndrome provide for a 10 percent rating when characteristic attacks occur one to three times per week; a 20 percent rating where there are characteristic attacks occurring four to six times per week; a 40 percent rating where there are characteristic attacks occurring at least daily; a 60 percent rating with two or more digital ulcers and a history of characteristic attacks; and a 100 percent rating with two or more digital ulcers plus autoamputation of one or more digits and a history of characteristic attacks. 38 C.F.R. § 4.104, Diagnostic Code 7117. Characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved. Id. A June 2013 service treatment record shows that the Veteran reported episodes of painful discoloration of his fingers and toes with exposure to cold lasting for ten to thirty minutes and followed by hyperemia. During the November 2013 VA artery and vein condition examination, the Veteran reported cold intolerance to his fingers and toes resulting in numbness and extreme cold. The examiner indicated that the Veteran had Raynaud’s syndrome with characteristic attacks occurring one to three times per week, but without digital ulcers or autoamputation. The uncontroverted evidence discussed above shows that the Veteran clearly meets the criteria for at least a 10 percent rating for Raynaud’s syndrome pursuant to Diagnostic Code 7117 because he has characteristic attacks of Raynaud’s syndrome occurring one to three times per week. The issue of entitlement to a rating in excess of 10 percent is addressed in the remand section below. B. Gastrointestinal Disability The Veteran is in receipt of a noncompensable rating for a gastrointestinal disability, including gastric ulcers, GERD, and IBS, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates an unlisted digestive system disorder, Diagnostic Code 7399, rated by analogy under the criteria for hernia hiatal under Diagnostic Code 7346. See 38 C.F.R. § 4.20. Under 38 C.F.R. § 4.114, gastric ulcers (Diagnostic Code 7304) and duodenal ulcers (Diagnostic Code 7305) have the same rating criteria, as follows. A rating of 10 percent rating is warranted for symptomatology that is mild with recurring symptoms once or twice yearly. A 20 percent rating is warranted for symptoms that are moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations. A 40 percent rating is warranted for symptoms that are moderately severe, i.e. less than severe but with impairment of health manifested by anemia and with weight loss; or for recurrent incapacitating episodes averaging 10 days or more in duration at least four times per year. A rating of 60 percent is warranted for severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Under Diagnostic Code 7319 (irritable colon syndrome), a noncompensable rating is assigned for mild irritable colon syndrome with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Under Diagnostic Code 7346 (hiatal hernia), a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent evaluation is warranted where 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. Under governing law, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not be combined with one another. 38 C.F.R. §§ 4.14, 4.113, 4.114. Rather, a single evaluation is to be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.114. Turning to the evidence of record, the Veteran was afforded a VA stomach and duodenal conditions examination in November 2013. The examiner noted a diagnosis of gastric ulcer. The examiner indicated that the Veteran had recurring episodes of symptoms that are not severe, occurring four or more times per year and lasting one to nine days on average. The examiner indicated that the Veteran had periodic abdominal pain, but no incapacitating episodes. The Veteran was afforded a VA intestinal conditions examination in November 2013. The examiner noted a diagnosis of irritable bowel syndrome. The examiner indicated that the Veteran had seven or more attacks of IBS in the past year, described as moderate abdominal cramping and diarrhea. The Veteran was afforded a VA esophageal conditions examination in November 2013. The examiner noted a diagnosis of GERD. The examiner indicated that the Veteran had pyrosis, reflux, and sleep disturbance. The uncontroverted evidence discussed above shows that the Veteran clearly meets the criteria for at least a 10 percent rating for his gastrointestinal disability because his gastrointestinal disability was manifested by at least mild gastric ulcer symptoms; gastroesophageal reflux disease (GERD) symptoms, including pyrosis, reflux, and sleep disturbance; and irritable bowel syndrome (IBS) symptoms, including abdominal cramping and diarrhea. The issue of entitlement to a rating in excess of 10 percent is addressed in the remand section below. C. Migraines The Veteran is in receipt of a noncompensable rating for migraine headaches pursuant to Diagnostic Code 8100 (Migraine). He contends that a higher rating is warranted. The criteria for rating migraines provide for a noncompensable rating for migraine headaches with less frequent attacks. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated as 10 percent disabling. Characteristic prostrating attacks occurring on an average once a month over the last several months are rated as 30 percent disabling. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Turning to the evidence of record, a May 2012 service treatment record shows that the Veteran reported one migraine episode per month for the past five to six months. The Veteran was afforded a VA headaches examination in November 2013. The Veteran reported that his migraine headaches occur about twice per month and last for three to four days. He also reported light and sound sensitivity, dizziness, nausea, and vomiting. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain less than one every two months. An April 2014 VA treatment record shows that the Veteran reported two migraines per month, on average. The uncontroverted evidence discussed above shows that the Veteran clearly meets the criteria for at least a 30 percent initial rating for migraines pursuant to Diagnostic Code 8100 because he has characteristic prostrating attacks averaging at least once per month. The issue of entitlement to a rating in excess of 30 percent is addressed in the remand section below. REASONS FOR REMAND The Veteran was last afforded a VA examination to assess the severity of his service-connected Raynaud’s syndrome, hemorrhoids, gastrointestinal disability, and migraines in November 2013, over five years ago. While the mere passage of time since the last VA examination does not, in and of itself, warrant additional development, the evidence suggests that the Veteran’s conditions may have worsened since the last VA examination. See, e.g., July 2014 VA Treatment Record (Veteran reported that Raynaud’s symptoms were increasing in frequency); March 2015 VA Treatment Record (Veteran reported migraines increasing in frequency and duration); April 2015 VA Treatment Record (Veteran reported that Raynaud’s was “really bad” this past winter, increasing GERD symptoms). Accordingly, the Veteran should be afforded new VA examinations to determine the current nature and severity of his service-connected Raynaud’s syndrome, hemorrhoids, gastrointestinal disability, and migraines. See VAOPGCPREC 11-95; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). With regard to service-connected prostatitis and dermatitis, the Veteran was afforded VA examinations in November 2013, however, the examination reports are inadequate to properly rate the Veteran conditions. The November 2013 VA male reproductive systems VA examiner noted a diagnosis of acute bacterial prostatitis in 2003, but indicated that the Veteran had no current symptoms. This is in conflict with the Veteran’s July 2013 retirement examination, which reflected a diagnosis of BPH with urinary obstruction, as well as an April 2014 VA treatment record showing complaints of BPH symptoms, including slow urine, leakage, frequency, and nocturia. Similarly, the November 2013 VA skin diseases examiner noted remote diagnoses of dermatitis and PFB, but recorded no residual symptoms on the examination report. This is in conflict with VA treatment records showing active treatment for dermatitis and eczema. See May 2014 VA Treatment Record. On remand, new VA examinations are warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). With regard to service-connected RLS, the Veteran has never been afforded a VA examination. This should be accomplished on remand. Finally, as the record reflects that the Veteran receives ongoing VA treatment, updated treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from August 2016 to the present documenting treatment for the issues on appeal. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected Raynaud’s syndrome. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected hemorrhoid disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All studies and tests deemed necessary should be conducted and a written interpretation of such should be associated with the examination report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should identify the presence, or absence of the following: external hemorrhoids; internal hemorrhoids; large or thrombotic hemorrhoids; persistent bleeding; anemia; and/or fissures. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected gastrointestinal disability (gastric ulcer, IBS, and GERD). The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All necessary tests and studies should be performed. The examiner should comment upon the Veteran’s treatment history and identify all symptoms and manifestations associated with the Veteran’s gastric ulcer, IBS, and GERD. The examiner should also comment on the severity and duration of any associated symptom identified on examination. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected migraine headache disability. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 6. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected prostatitis. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include any voiding dysfunction. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 7. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected dermatitis. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected skin disability under the rating criteria. If possible, the VA examination should be scheduled during an active stage of the veteran’s skin disability. The examining facility should communicate with the veteran as necessary to maximize the likelihood of performing an examination during an active stage. If it is not possible to schedule the Veteran for a VA examination during an active stage, the examiner’s report should include documentation of the Veteran’s symptoms based on his description of symptoms during an active stage. The examiner should describe the area(s) of the body affected by the dermatitis, to include the percentage of the entire body affected, as well as the percentage of exposed area(s) affected. The examiner should specifically note whether the Veteran has been prescribed any systemic therapy, such as corticosteroids or other immunosuppressive drugs, as well as the period prescribed during the prior twelve-month period. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran’s claim. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel