Citation Nr: 21003009 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-51 477 DATE: January 19, 2021 ORDER Service connection for headaches is granted. Service connection for irritable bowel syndrome (IBS) is denied. A 10 percent rating for hypertension is granted. REMANDED The issue of service connection for fibromyalgia is remanded. FINDINGS OF FACT 1. The Veteran’s current migraine headaches are as likely as not aggravated by his service-connected cervical strain with intervertebral disc syndrome (IVDS). 2. The Veteran does not have IBS. 3. The Veteran’s hypertension requires continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310. 2. The criteria for service connection for IBS have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for the assignment of a 10 percent rating for the service-connected hypertension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.6, 4.7, 4.104 Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1994 to April 1999. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the appeal for further development of the record. Specifically, the Board instructed the RO to schedule the Veteran for VA examinations to determine the nature and etiology of his claimed headaches and severity of his service-connected hypertension. The Veteran received responsive examinations in December 2019. Thus, the requested development has been completed and the case has been returned for appellate disposition. The appeal originally included the issues of entitlement to service connection for right and left upper extremity peripheral neuropathy and right and left lower extremity peripheral neuropathy. In a September 2020 rating decision, the RO granted service connection for right upper extremity radiculopathy, left upper extremity radiculopathy, right lower extremity radiculopathy and left lower extremity radiculopathy and assigned 40, 30, 20 and 20 percent ratings, respectively effective December 19, 2019. Thus, these claims have been resolved and are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for headaches, to include claimed secondary to service-connected cervical and lumbar spine disabilities The Veteran asserts that he always experiences his headache symptoms when he has extreme muscle spasms due to his service-connected cervical spine disability. The February 1999 Medical Evaluation Board report reflects that the Veteran had tension headaches secondary to back pain. The April 2013 Report of VA Headaches examination documents diagnosis of migraine (including migraine variants) headaches. The Veteran reported that he experiences headaches when he is having flareups of neck pain. The examiner opined that the headache condition was less likely as not caused by or a result of service and explained the Veteran was never diagnosed or treated for a migraine headache condition during his period of service and the available treatment records within 2 years of his discharge from service were silent for any headache condition. The May 2013 examination addendum documents the physician’s opinion that the headaches were less likely as not caused by, a result of or aggravated by his cervical strain or thoracolumbar spine strain. The physician explained that the Veteran’s migraine headaches were not due to any underlying organic disease process. The December 2019 Report of VA headaches examination documents diagnosis of migraine (including migraine variants) headaches. The Veteran reported that he had a neck injury with led to his headaches. He reported that he would develop headaches when he had to wear gear on his head, neck and back. The examiner opined that the headaches less likely than not onset due to injury sustained in service, explaining that there was no documentation of headaches in the service treatment records. The examiner also opined that the headaches were less likely than not proximately due to or the result of his service-connected thoracolumbar spine disability, explaining that the head was not directly connected to the middle and lower back and degenerative joint disease (DJD) in the middle and lower back would not indirectly radiate up to the head. However, the examiner opined that the Veteran’s migraine headaches were as likely as not aggravated beyond natural progression by his service-connected cervical strain with IVDS. The examiner explained that the cervical strain with IVDS would lead to radiation of pain up the neck and lead to migraine headaches. Thus, the evidence is in relative equipoise in showing that the Veteran has migraine headaches, which are aggravated by the service-connected cervical strain with IVDS. In such cases, reasonable doubt is resolved in the Veteran’s favor and service connection for headaches is warranted. The Board expresses no opinion regarding the severity of the disorder. The RO will assign an appropriate disability rating on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms “compensation,” “rating,” and “service connection” as although related, each having a distinct meaning as specified by Congress). 2. Entitlement to service connection for IBS, to include claimed secondary to fibromyalgia The Veteran contends that he has IBS that was caused or aggravated by fibromyalgia. A February 1998 Report of Medical History documents that the Veteran has mild gastroesophageal reflux disease (GERD). The February 1999 Medical Evaluation Board Report confirms that the Veteran has mild GERD. The April 2013 Report of VA intestinal conditions examination documents that the Veteran does not have and has never been diagnosed with an IBS or any other intestinal condition. The Veteran reported that he started having diarrhea following a fall in 1997. He experienced cramping abdominal pain approximately every other month. He reported that he has constant diarrhea and has approximately 5 bowel movements per day. He also reported that he has loose stools. The examiner concluded that there was no objective evidence of an IBS. The claim of service connection for IBS must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Here, the Veteran has presented no evidence of, and the probative evidence show that the Veteran does not have current IBS. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection has been established for gastroesophageal reflux disease (GERD) and a 10 percent rating has been assigned. The Veteran is not shown to have current IBS, independent of the already service-connected GERD. The Veteran is competent to report gastrointestinal symptoms that he experiences but he is not competent to establish that he has current IBS that onset secondary to a service-connected disability. Competent lay evidence means any evidence 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 lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is a lay person and is not competent to establish that he has current IBS that was cause or aggravated by a service-connected disability. He is not competent to diagnose or offer opinion as to etiology of any current IBS. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claim of entitlement to service connection for IBS must be denied. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to a compensable rating for hypertension Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. The rating for the Veteran’s hypertension has been assigned pursuant to Diagnostic Code 7101. See 38 C.F.R. § 4.104. A 10 percent rating is warranted for hypertension manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Higher ratings are also available based on even higher diastolic pressure readings. The April 2013 Report of VA Examination reflects that the Veteran’s blood pressure readings were 142/90, 150/100 and 152/98. He was prescribed Hydrochlorothiazide (HCTZ) and Lisinopril to treat his hypertension. The July 2019 Report of VA Examination reflects that the Veteran’s blood pressure readings were 142/88, 148/90 and 150/90. He reported that initially the Lisinopril was not working well to control his hypertension alone; so, Metoprolol was introduced to his medication regime. He continued to experience labile fluctuation with blood pressure. The December 2019 Report of VA Examination reflects that the Veteran’s blood pressure readings were 155/80, 153/83 and 155/83. He was prescribed Lisinopril and Metoprolol to treat his hypertension. The evidence shows that the Veteran requires continuous medication for control of his hypertension. Thus, the Board concludes that this evidence demonstrates that the manifestations of his hypertension more closely resembled the criteria for a 10 percent rating throughout the appeal period. The Board finds in reaching this conclusion that the overall severity of the service-connected hypertension is not shown to have significantly changed during the course of his appeal. The manifestations of the Veteran’s hypertension do not warrant assignment of a rating in excess of 10 percent. A 20 percent rating requires evidence of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. The Blood pressure readings documented above show that the Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Thus, a rating in excess of 10 percent is not warranted for the hypertension. The Veteran has not raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for fibromyalgia is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that his fibromyalgia onset due to injury sustained during his period of service. However, an April 2013 VA examiner specifically opined that the diagnosed fibromyalgia was less likely as not caused by or a result of service. The examiner explained that the diagnosis of fibromyalgia requires a history of widespread pain for at least three months; pain on both sides of the body and above and below the waist; presence of axial skeletal pain (cervical spine, anterior chest, thoracic spine or low back); and, pain in 11 of 18 tender point sites on digital palpation with an approximate pressure of 4 kg where the patient states that the palpation is painful (tenderness does not qualify). The examiner concluded that review of the service treatment records revealed that these criteria were not met. The Veteran was not diagnosed with fibromyalgia in service and treatment records within 2 years of his discharge were silent for symptoms or diagnosis of fibromyalgia. The examination is insufficient for determining whether service connection may be granted. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 2. REMAND DIRECTIVES: Schedule the Veteran for a VA examination to determine the nature and likely etiology of the claimed fibromyalgia. The VBMS file must be reviewed by the examiner. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented medical history and assertions – he asserts that he has fibromyalgia that onset due to injury sustained during a period of service. After reviewing the entire record, the examiner should provide an opinion with supporting explanations as to the following: Does the Veteran have current fibromyalgia that had onset due to injury sustained during a period of service, to include diagnosed myofascial pain syndrome incurred therein? As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his attention is drawn to the following: *The February 1999 service Medical Evaluation Board Report documents the Veteran’s complaint of back pain. The examiner recorded the Veteran’s history of complaint and treatment for back disorders. The diagnosis was cervicalgia with bilateral myofascial pain syndrome. *The April 2013 Report of VA fibromyalgia examination documents diagnosis of fibromyalgia. The examiner opined that the diagnosed fibromyalgia was less likely as not caused by or a result of service and explained that the diagnosis of fibromyalgia requires a history of widespread pain for at least three months; pain on both sides of the body and above and below the waist; presence of axial skeletal pain (cervical spine, anterior chest, thoracic spine or low back); and, pain in 11 of 18 tender point sites on digital palpation with an approximate pressure of 4 kg where the patient states that the palpation is painful (tenderness does not qualify). The examiner concluded that review of the service treatment records revealed that these criteria were not met. The Veteran was not diagnosed with fibromyalgia in service and treatment records within 2 years of his discharge were silent for symptoms or diagnosis of fibromyalgia. *Submitted research articles explain that myofascial pain syndrome is one of the most common causes of acute and chronic pain and may involve either a single muscle or a muscle group. Myofascial pain syndrome centers around sensitive points in the muscles called trigger points and these trigger points can be painful when touched and the pain can spread throughout the affected muscle. The research articles explained that some research suggests that myofascial pain syndrome may develop further into fibromyalgia in some people. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.