Citation Nr: 20004077 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 17-50 631 DATE: January 16, 2020 ORDER Entitlement to an initial 20 percent rating, but not higher, for right (major) hand tremors is granted. Entitlement to an initial 20 percent rating, but not higher, for left (minor) hand tremors is granted. Entitlement to an initial rating of 50 percent, but not higher, for migraines is granted. Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial compensable rating for macrocytic pernicious anemia (thrombocytopenia) is denied. REMANDED Entitlement to service connection for fatigue, as secondary to medication for service-connected migraines and tremors, is remanded. Entitlement to service connection for gastroenteritis is remanded. Entitlement to service connection for upper and lower intestinal polyps is remanded. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran’s right- and left-hand tremors more nearly approximate mild incomplete paralysis of the lower radicular group; at no time was moderate or severe incomplete paralysis more nearly approximated. 2. The Veteran’s migraines are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran’s hypertension has not been manifested by blood pressure readings with diastolic pressure predominantly 100 more or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more with the requirement of continuous medication for control. 4. During the period applicable to the appeal, the Veteran’s hemoglobin has been tested to be no less than 15.5 gm/100ml. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for right (major) hand tremors are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.120, 4.124a, Diagnostic Codes (DCs) 8004 & 8512. 2. The criteria for a 20 percent rating for left (minor) hand tremors are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.120, 4.124a, DCs 8004 & 8512. 3. The criteria for a 50 percent rating for migraines have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8100. 4. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7101. 5. The criteria for an initial compensable rating for macrocytic pernicious anemia (thrombocytopenia) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.117, DC 7700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from November 1982 to October 1991, and from December 2003 to July 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and December 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 1. Entitlement to an initial 20 percent rating, but not higher, for right (major) hand tremors is granted. 2. Entitlement to an initial 20 percent rating, but not higher, for left (minor) hand tremors is granted. The Veteran seeks entitlement to an initial disability rating in excess of 30 percent for his bilateral essential hand tremors. The Veteran is currently rated with a single 30 percent for under DC 8004. The Board finds that the Veteran’s disability picture more nearly approximates criteria for a rating under DC 8512, which contemplates Diseases of Peripheral Nerves, lower radicular group. 38 C.F.R. § 4.124a, DC 8512. The Board has elected to change the rating code to DC 8512 because it affords the Veteran a higher rating than is currently assigned under DC 8004, while still compensating him for all his neurological disability symptoms. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). DC 8512, lower radicular group paralysis, provides a 70 percent (60 percent minor) ratings for complete paralysis; all intrinsic muscles of hand, and some or all flexors of wrist and fingers, paralyzed (substantial loss of use of hand). A 50 percent rating (40 percent minor) is warranted for severe incomplete paralysis. A 40 percent rating (30 percent minor) is warranted for moderate incomplete paralysis. A 20 percent rating (20 percent minor) is warranted to mild incomplete paralysis. Id. In this context “minor” and “major” refer to the dominant or nondominant side. Here, the Veteran’s major hand (dominant) is the right upper extremity, and the minor hand is the left upper extremity. The Veteran has reported having recurrent hand tremors affecting both hands. He is competent to report this symptom since it is readily observable. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). At a January 2014 VA examination, the Veteran reported that it is difficult for him to use a phone at work and that his tremors worsen when he is stressed or anxious. Based upon the probative evidence, the Board finds that the bilateral hand tremors associated with the Veteran’s service-connected Parkinson’s like syndrome more nearly approximate moderate incomplete paralysis of the lower radicular group under DC 8512. 38 C.F.R. § 4.124a, DC 8512. The symptoms consist entirely of bilateral hand tremors that mildly restrict use of either hand. Although the Veteran has indicated medication improves his symptoms, the ameliorative effects of medication are not contemplated by DC 8512 and will not be considered. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The evidence weighs against finding moderate or worse paralysis of the lower radicular group. 38 C.F.R. § 4.124a, DC 8512. The clinical findings from the January 2014 VA examination do not show loss of muscle strength, absent reflexes, trophic changes, or muscle atrophy in either hand that are associated with moderate or worse neurological impairment. Moreover, the Veteran’s lay statements do not otherwise indicate the presence of muscle atrophy, sensory loss, or trophic changes. The primary complaint is motor impairment from bilateral hand tremors, which is reasonably encompassed by the ratings for mild incomplete paralysis of the lower radicular group. 38 C.F.R. §§ 4.20, 4.120, 4.124a, DC 8512. Thus, the preponderance of the evidence weighs against a finding of moderate incomplete paralysis, and the benefit of the doubt doctrine is not for application. Because moderate incomplete paralysis is not shown by the evidence, neither is severe nor complete paralysis. For the foregoing reasons, the Board finds that increased ratings of 20 percent, but no higher, for right (major) hand tremors, and 20 percent, but no higher, for left (minor) hand tremors are warranted under DC 8512. 3. Entitlement to an initial rating of 50 percent for migraines is granted. The Veteran seeks an initial rating in excess of 30 percent for his service-connected migraines. The Veteran specifically asserts that his headache symptoms satisfy criteria for a 50 percent rating under DC 8100. The Board agrees. Migraine headaches are evaluated under DC 8100 in the Schedule of Ratings for Neurological Conditions and Convulsive Disorders found in 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for migraines with characteristic prostrating attacks occurring less frequently than one in two months over the last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks occurring averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The highest, 50 percent schedular rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating”, nor has the Court. See Fenderson v. West, 12 Vet. App. 119, 127 (1999) (quoting DC 8100 verbatim and holding evidence established headaches were “prostrating”, but not specifically addressing what constitutes a prostrating attack). A prominent medical dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary, 1554 (31st Edition 2007). Similarly, the regulations provide no clarification as to the meaning of the phrase “productive of severe economic inadaptability.” The Court, however, has issued a precedent decision which focuses on the meaning of this phrase. In Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004), the Court interpreted the phrase as follows: “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability, “a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50% rating.” Id. at 446. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. The Veteran was provided a VA examination on his headache symptoms in November 2014. The examiner found that the Veteran experienced head pain on both sides of the head, productive of nausea, sensitivity to light, and sensitivity to sound. The Veteran was prescribed and took medication to alleviate head pain, nausea, sensitivity to light, and sensitivity to sound. The examiner reported that the Veteran experienced head pain more frequently than once per month, but that the Veteran’s typical head pain had a duration of less than one day. The examiner concluded that the Veteran experienced prostrating attacks, but that they were not very frequent and prolonged. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran’s headaches. However, the examiner found that the Veteran’s head pain impacts his ability to work in that the Veteran’s head pain makes it difficult for him to drive, concentrate, and perform tasks. The above evidence establishes that the Veteran exceeds the 30 percent criteria as he has characteristic prostrating attacks more frequently than once a month. The question, then, is whether the Veteran’s head pain symptoms meet or more closely approximate the criteria for a 50 percent rating. The Board finds that they do. The record also contains lay statements from the Veteran as to the current duration and frequency of his head pain. For example, in the Veteran’s February 2019 Appellate Brief and September 2017 VA Form 9, the Veteran reports that he now experiences prostrating head pain four to six times a month, which can last up to 24 hours. The Board finds that the extent to which the Veteran experiences head pain four to six times a month is frequent, prostrating, and that a duration of 24 hours is prolonged such that the Veteran experiences very frequent completely prostrating and prolonged attacks of migraine headache pain. Thus, the only remaining element to meet the 50 percent criteria is that the “very frequent prostrating and prolonged attacks” are productive of severe economic inadaptability. Importantly, actual economic inadaptability need not be shown, rather the Court has instructed that the criteria are met if the headaches are “producing” or “capable of producing” severe economic inadaptability. Pierce, 18 Vet. App. at 445-46. The Board has no basis in the record to find that very frequent prostrating and prolonged attacks of migraine headache pain which cause nausea, sensitivity to light, and sensitivity to sound such that the Veteran has difficulty driving, concentrating, and performing tasks are not capable of producing severe economic inadaptability. In making this finding, the Board is cognizant of Pierce and subsequent instructions and signals from the Court regarding the evidence necessary to find such headaches are not capable of producing severe economic inadaptability. In addition, the Board is bound by statute and regulation to give the Veteran the benefit of the doubt in resolving such issues. 38 C.F.R. §§ 4.3, 4.7. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s headache symptoms more closely approximate the criteria for a 50 percent rating under DC 8100. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a 50 percent rating, but no higher, for service-connected migraines is granted. 4. Entitlement to an initial compensable rating for hypertension is denied. The Veteran seeks an initial compensable rating for his service-connected hypertension. The Board finds a compensable rating is not warranted. The Veteran’s hypertension is evaluated under the provisions of 38 C.F.R. § 4.104, DC 7101. Under DC 7101, hypertensive vascular disease, hypertension, and isolated systolic hypertension warrant a 10 percent rating with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. A 40 percent is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. For the purpose of reporting these blood pressure readings, the systolic blood pressure reading will be listed first, followed by a slash, and the diastolic blood pressure reading will be listed last. The Veteran specifically asserts that his diastolic pressure has been historically predominantly 100 or more and that he requires continuous medication for control. However, the evidence does not show that the Veteran’s diastolic blood pressure has historically been predominantly 100 or more. The Veteran was provided a VA examination in January 2014. The examiner confirmed an established diagnosis of hypertension and noted that the Veteran’s treatment plan included taking continuous medication for blood pressure control. On examination, the Veteran’s blood pressure readings were recorded as 134/80, 134/84, and 136/84. The examiner indicated that the Veteran did not have a history of diastolic blood pressure predominantly 100 or more. The examiner found that the Veteran’s hypertension did not impact his ability to work. Moreover, the Veteran’s systolic blood pressure has never been shown to be above 160. Since the Veteran has not experienced diastolic blood pressure predominantly above 100, nor systolic blood pressure predominantly 160 or more, the Veteran does not meet the criteria for a compensable rating under DC 7101. The appeal is denied. 5. Entitlement to an initial compensable rating for macrocytic pernicious anemia (thrombocytopenia) is denied. The Veteran seeks a compensable rating for his service-connected pernicious anemia, also referred to in his medical records as low vitamin B12 levels. The Board finds that a compensable rating is not warranted. Under Diagnostic Code 7700, anemias warrant a noncompensable (zero percent rating) when the hemoglobin level is 10gm/100ml or less and the condition is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml (g/dL) or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml (g/dL) or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted for a hemoglobin level of 7gm/100ml (g/dL) or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for a hemoglobin level of 5gm/100ml (g/dL) or less, with findings such as high output congestive heart failure or dyspnea at rest. A Note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117. After review of the evidence, the Board finds that the preponderance of the evidence is against awarding a compensable rating for anemia under DC 7700, as the evidence demonstrates the Veteran’s hemoglobin levels above 10gm/100ml (g/dL) throughout the period on appeal. The Veteran was provided a VA examination on his anemia in January 2014. Upon testing, the Veteran’s hemoglobin level was shown to be 15.5gm/100ml (g/dL). Furthermore, treatment records submitted in conjunction with the Veteran’s filing show that the Veteran’s hemoglobin was 16.4gm/100ml (g/dL) in March 2007, 15.8gm/ml (g/dL) in May 2013, and 15.7gm/ml (g/dL) in July 2013. While the examiner noted that the Veteran experienced weakness and fatigue, which are symptoms contemplated by the 10 and 30 percent ratings under DC 7700, the rating criteria specifically include the conjunctive “with” such that the symptoms of fatigability must be present in conjunction with hemoglobin levels between 10gm/100ml or less in order to meet the criteria for the 10 or 30 percent schedular ratings under DC 7700. See Melson v. Derwinski, 1 Vet. App. 334 (1991). Because the Veteran’s hemoglobin levels consistently exceed and do not closely approximate 10gm/100ml, the criteria for a compensable rating under DC 7700 for anemia are not met or approximated at any point during the appeal period. As the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine does not apply. The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for fatigue as secondary to medication for service-connected migraines and tremors is remanded. The Veteran seeks service connection for fatigue symptoms either as directly related to his military service or secondary to medications taken for his service-connected migraines and tremors. The Board finds another VA examination is necessary before deciding this claim. The Veteran was provided a VA examination on his fatigue symptoms in January 2014. The examiner did not diagnose the Veteran with chronic fatigue syndrome, but instead noted that the Veteran currently experienced fatigue from time to time. Without a diagnosis, the examiner was unable to relate his fatigue symptoms directly to service. However, the examiner did not address the effects of medications. VA treatment records show that the Veteran has complained of fatigue, that he has been noted to have systemic fatigue, and that he has received a provisional diagnosis of fatigue while being prescribed Propranolol for his migraines and tremors. The Veteran states that he now takes Propranolol at a lower dose than the dose he was originally prescribed “just so [he] can function.” While he has not been diagnosed with chronic fatigue syndrome, there is still the issue of whether he has a condition characterized by fatigue and a subsequent inability to function caused by medications like Propranolol used for treating his service-connected migraines and tremors. See 38 C.F.R. § 3.310 (providing for service connection on a secondary basis). Accordingly, a VA examination and opinion are warranted to address this issue. 2. Entitlement to service connection for gastroenteritis is remanded. 3. Entitlement to service connection for upper and lower intestinal polyps is remanded. The Veteran seeks service connection for gastrointestinal problems, including gastroenteritis and upper and lower intestinal polyps. The Board finds that additional development is necessary before deciding these claims. The Veteran was provided a VA examination on his gastroenteritis and polyps in January 2014. The examiner noted that the Veteran once suffered from gastroenteritis, but that symptoms had resolved. The examiner also noted that the Veteran had polyps that were removed and that the Veteran currently did not experience symptoms related to them. Without current diagnoses, the examiner was unable to relate these conditions to the Veteran’s military service. However, the Veteran has since identified that he has been receiving treatment for his continuing gastrointestinal issues from a private physician. Notably, in his September 2017 VA Form 9 and February 2019 Appellate Brief, the Veteran identifies a Dr. A.S. at the MedStar Shah Medical Group as his current physician treating him for current gastroenteritis and polyps. Reasonable efforts must be undertaken to obtain these missing private treatment records in accordance with VA’s duty to assist, as they may contain current diagnoses and etiological information. See 38 C.F.R. § 3.159 (e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, should they exist. Any efforts to obtain these records must be documented in the claims file. 2. Ask the Veteran to provide releases for relevant records of treatment from MedStar Shah Medical Group at its 130 Hospital Road, Suite 300, Prince Frederick, Maryland 20678 location, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues still on appeal. If the Veteran provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 3. Schedule the Veteran for a VA examination to address the Veteran’s symptoms of fatigue and difficulty functioning, and for an opinion as to whether such symptoms are secondary to medication for his service-connected migraines and tremors. After examination and review of the medical history, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a fatigue condition that is (1) proximately due to, or (2) aggravated beyond its natural progression by side effects of taking Propranolol for his migraines and tremors. The VA examiner must provide separate findings and rationales relating to causation and aggravation. A complete rationale must be provided for any opinion expressed. A complete rationale must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 4. Then, readjudicate the claims on appeal. If any benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.