Citation Nr: 21061879 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 20-07 895 DATE: October 5, 2021 ORDER 1. Entitlement to an increased rating in excess of 30 percent for migraine headaches is denied. 2. Entitlement to an increased rating in excess of 10 percent for gastroesophageal reflux disease (GERD), to include gastritis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The preponderance of the evidence is against a finding that the Veteran's GERD was manifested by two or more of the following symptoms with lesser severity: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 3. The record does not demonstrate the Veteran experiences stricture of the esophagus to warrant a separate disability rating under Diagnostic Code (DC) 7203 and the Veteran's GERD is adequately contemplated by DC 7346. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8100. 2. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2004 to August 2005, January 2007 to May 2008, and September to November 2010. These matters were previously denied in a June 2020 Board of Veterans' Appeals (Board) decision, along with the issue of entitlement to service connection for a cervical spine disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (Joint Motion), which vacated the June 2020 Board decision as to the within matters and remanded them for readjudication. The issue involving the denial of service connection for a cervical spine disorder was dismissed. The Joint Motion was granted by the Court the following week. Within the Joint Motion, the parties agreed that the Board did not address relevant evidence of a December 2017 Disability Benefits Questionnaire submitted by the Veteran that indicated the Veteran experienced prostrating attacks of migraine headache pain more frequently than once per month. The parties also agreed that the Board did not provide an adequate explanation of how the Veteran's migraine headaches do not result in severe economic inadaptability by erroneously equating "economic inadaptability" with "unemployability." Additionally, the parties agreed that remand was warranted because the June 2020 Board did not address the Veteran's contention that she is entitled to a separate additional disability rating under DC 7203 for stricture of the esophagus, in addition to her disability rating for GERD under DC 7346. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Migraine headaches Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (Internal citation omitted.) Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran has reported worsening migraine symptoms over the period on appeal. She has reported experiencing migraines three to four days per week. She stated that she often must lie down in a dark room in response to the pain. She stated that she receives shots at work to relieve her migraine pain multiple times per week. The Veteran added that she has had to miss work because of her migraines and has run out of sick leave as a result. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 30 percent for migraine headaches. The reasons follow. The Veteran underwent a VA examination for migraines in April 2014, which reflected symptoms of pain and sensitivity to sound. The examiner documented that the Veteran did not have characteristic prostrating attacks of migraine headache pain. In October 2015, the Veteran reported experiencing five to six migraines per month, but no incapacitating episodes were noted, and the Veteran's symptoms were treated conservatively with medication. In March 2016, the Veteran complained of nausea, sensitivity to light and sound, changes in vision, and migraine headache pain during a VA examination. The examiner indicated prostrating attacks of migraine pain, which occurred once a month. However, the examiner documented that the attacks did not result in migraine headache pain productive of severe economic inadaptability. A July 2016 VA examination reflected similar symptoms to the previous examination; however, the examiner marked that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. A December 2017 disability benefits questionnaire (DBQ) for headaches reflected moderate to severe migraine attacks with severe episodes occurring almost monthly. Symptoms included pain, nausea, vomiting, and sensitivity to light and sound. The clinician noted that the Veteran had very frequent prostrating and prolonged attacks of migraine and non-migraine headache pain, which occurred more frequently than once per month. This finding was explicitly noted in the June 2020 Board denial, despite the Joint Motion's finding that it was not discussed. The Board acknowledges that this DBQ documented the Veteran to have prostrating and prolonged attacks of migraine pain more than once per month. This is not indicative of the Veteran's functioning over the course of the relevant period, as examinations both before and after the submission of this DBQ indicated less frequent episodes. Additionally, such a finding is not in itself demonstrative of severe economic inadaptability to support an increased rating, which will be discussed further herein, as partially supported by the Veteran's continued full-time employment. During a February 2018 VA examination, the Veteran reported daily headaches despite oral treatment and Botox. The examination reflected symptoms of headaches with stabbing pain, nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner noted that on average, the Veteran experienced prostrating attacks of migraine headache pain once a month. Further, there were no prostrating, prolonged attacks of migraine pain productive of severe economic inadaptability. Further, clinical treatment notes were reviewed. An October 2019 private treatment note reflected that the Veteran had experienced severe episodes of migraines, including episodes that lasted for a week. These attacks caused her to miss four to five days of work over the period of a month. However, a neurological examination was normal. The Veteran was assessed with chronic migraines without aura, intractable with status migrainosus with fluctuations in headache attacks. In May 2020, the Veteran submitted an affidavit contending that she frequently had to take time off from work due to migraines. She stated that she ran out of sick leave five times in the past year and had to use annual leave or receive unpaid time instead. Further, she wrote that when she worked with a migraine, she visited the employee clinic doctor and must receive shots to manage the migraine pain as often as two to three times per week. While recognizing that the term "economic inadaptability" is not equivalent to "unemployability," the Board finds the preponderance of the evidence is against a finding that the Veteran experiences headaches that are very frequent, completely prostrating and involving prolonged attacks productive of severe economic inadaptability. Although the Veteran has missed work due to migraines, the evidence shows prostrating attacks of migraine headache pain typically occurred about once per month. Additionally, the Veteran has maintained full-time employment in a skilled position and has demonstrated independence in her affairs that is not indicative of severe economic inadaptability. For example, treatment records in 2021 show that the Veteran works as an executive secretary at VA. She has stated that she works in-office for one week and works from home the next week. While the Veteran has stated that she has been able to manage her migraines better by working from home, the Veteran has demonstrated her ability to work in an office environment and her split work schedule between office and home environments appears to be the result of the COVID-19 pandemic and not an accommodation provided for the Veteran's disability. Treatment records show that the Veteran thinks she does her job well and that she is able to finish her tasks and has good attention and concentration. Mental status examinations show the Veteran to be fully alert and oriented with normal cognition. While the Veteran has had to use leave to address her symptoms, sick and personal leave is provided for such reasons. Her headaches have not prevented the Veteran from sustaining her employment. The Veteran has remained independent in her activities of daily living and instrumental activities. Her nutrition has been described as excellent by a treating provider, and she either goes to the gym or takes walks of a mile or more approximately three times per week. Even if the Veteran's condition were to require part- or full-time work from home, the Veteran has demonstrated that she is capable of telework, and there is a broad and growing range of employment that allows for such flexibility. The Veteran has a skillset and the functional capability that would translate to a wide range of employment options, despite her migraines, to include secretarial, administrative, and clerical jobs that would be similar in nature to her current employment. For these reasons, the Board finds that the Veteran's chronic migraines are not productive of severe economic inadaptability. For all the reasons laid out above, the Board find the preponderance of the evidence is against an award of a rating in excess of 30 percent for migraine headaches. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the claim for increase is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. GERD The Veteran's GERD is rated under DC 7399-7346 for hiatal hernias. See 38 C.F.R. § 4.114, DC 7346. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. A 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum schedular 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. The rating criteria do not define "considerable impairment of health" as described in the 30 percent evaluation, nor do the criteria define "severe impairment of health" as described in the 60 percent evaluation. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. However, the Board finds instructive the Merriam-Webster's Dictionary definition of "considerable," which is "large in extent or degree." The Merriam-Webster's Dictionary defines "severe" as "of a great degree" and, alternatively, "causing discomfort or hardship." The Veteran has reported a range of symptoms resulting from GERD and gastritis, including nausea, stomach pain, vomiting, pyrosis, and reflux. The Veteran also experiences dysphagia, which she has reported requires a very restrictive diet. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for GERD. The reasons follow. On VA examination in October 2014, the Veteran reported symptoms of epigastric burning and reflux. The examiner marked signs and symptoms including persistently recurrent epigastric distress, pyrosis, reflux, and nausea. A March 2016 VA examination revealed symptoms of dysphagia, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances, and nausea due to GERD. During this examination, the Veteran complained of a burning pain in the stomach. In mid-2016, the Veteran was noted to experience a burning sensation and epigastric pain precipitated by fried foods, condiments, and other irritants. She was reported to modify her diet to avoid such irritants. VA treatment records in December 2016 indicate the Veteran had erosive gastritis and GERD with dysphagia. A manometry was performed, which was remarkable for low lower esophageal sphincter pressure, but was otherwise normal. The findings were noted to explain the Veteran's reflux symptoms. She was recommended to follow up with speech and swallow services. The Veteran underwent an esophageal endoscopy in December 2017. The Veteran's dysphagia symptoms were recorded, and the Veteran was assessed with GERD and gastritis. In a February 2018 VA examination report, the examiner documented the Veteran complained of abdominal pain. The examiner noted symptoms of pronounced abdominal pain that occurred less than monthly, recurrent nausea that occurred four or more times per year, and recurrent vomiting that occurred four or more times per year. Typically, these symptoms lasted for less than one day. As to the Veteran's contention that she is entitled to a separate disability rating under DC 7203 for her symptoms of dysphagia, the Board finds that the Veteran's disability is appropriately considered and rated by her current 10 percent disability rating under DC 7346. The symptoms contemplated by the DC 7346 criteria include, among other things, dysphagia, which is defined as difficulty swallowing. See 38 C.F.R. § 4.114, DC 7346; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 597 (32nd ed. 2012). Diagnostic Code 7203, which specifically relate to stricture of the esophagus, may also contemplate difficulty swallowing since it relates to how stricture impacts a person's ability to swallow solids and liquids. However, the listed criteria under DC 7203 makes no mention of dysphagia. The Board notes that dysphagia may exist as a symptom separate from a stricture of the esophagus. Despite dysphagia, the longitudinal evidence does not show the Veteran to experience stricture of the esophagus. The Veteran's October 2014 and March 2016 VA examination reports for GERD included specific findings that the Veteran did not have esophageal stricture. A 2016 manometry was remarkable for lower esophageal sphincter pressure, noted as a causative factor for the Veteran's reflux symptoms, but the findings were otherwise normal, and there was no documentation that the Veteran had esophageal stricture. Treatment notes in late 2016 state that an esophagogastroduodenoscopy was remarkable for erosive gastritis, and that the Veteran's dysphagia is due to a pharyngeal problem, with no mention of esophageal stricture. The Veteran's December 2017 esophageal endoscopy report diagnosed the Veteran with GERD and gastritis but did not document esophageal stricture. The Veteran has been noted to restrict her diet; however, the preponderance of the evidence is against a finding that the diet restrictions are due to esophageal stricture, but rather that some foods, such as fried foods, cheese, and certain condiments and juices, cause GERD symptoms, such as epigastric pain, burning sensation, nausea, heartburn, bloating, and constipation. The Veteran has been recommended to maintain a high fiber diet with plenty of fluids. However, esophageal stricture is generally not noted or documented to be a cause of the Veteran's restrictive diet. Also, despite these symptoms, recent treatment notes from June 2021 document that the Veteran was able to eat pizza on multiple occasions while otherwise maintaining a normal diet with varied foods. As the Veteran is not found to have stricture of the esophagus, the Board finds that the Veteran's GERD symptoms, including dysphagia, are appropriately considered under DC 7346. Additionally, in this instance, a separate rating under Code 7203 is not permitted because the Veteran's rating under DC 7346 includes symptomatology that overlaps with the criteria of DC 7203. The Veteran's representative has argued that the Veteran's dysphagia, which is already considered by DC 7346, warrants an additional separate rating under DC 7203. The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. As such, a separate, compensable rating is not permitted, as a separate rating for such symptoms would constitute pyramiding. In sum, the preponderance of the evidence is against a rating in excess of 10 percent for GERD. Although the Veteran has shown symptoms including dysphagia, pyrosis, and regurgitation, these symptoms have not been shown to be productive of considerable impairment of health. Rather, their lesser severity is indicative of the 10 percent rating that is currently assigned. While the Veteran modifies her diet to mitigate her symptoms, she is noted to have a varied diet and is still capable of eating foods that may exacerbate her symptoms, such as pizza. Examination findings predominantly show the Veteran not to be in acute distress. Recent treatment records from 2021 document that the Veteran is fully independent in all activities of daily living and instrumental activities and describe her nutrition as "excellent." She has maintained full-time employment and stated that she believes she has a healthy diet. Accordingly, the weight of the evidence does not support a finding of considerable impairment of health to warrant an increased rating. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for GERD. The benefit of the doubt rule is not applicable, and the claim for a higher rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, Associate Counsel 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.