Citation Nr: 21066749 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-26 295 DATE: November 2, 2021 ORDER Entitlement to service connection for a gastrointestinal condition, to include irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), is granted. Entitlement to a 50 percent rating for posttraumatic headaches prior to April 21, 2017, is granted. Entitlement to a rating in excess of 10 percent for a low back strain is denied. REMANDED Entitlement to service connection for a right shoulder condition is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's gastrointestinal condition began during active service. 2. Resolving reasonable doubt in the Veteran's favor, service-connected headaches resulted in frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability for the entire period on appeal. 3. The Veteran's low back strain has not resulted in limitation of flexion to 60 degrees or fewer during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal condition is met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). 2. The criteria for a 50 percent rating for posttraumatic headaches prior to April 21, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.14, 4.124a, DC 8100. 3. The criteria for a disability rating in excess of 10 percent for a low back strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.14, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2003 to May 2009, including service in the Southwest Asia Theater. The Veteran requested and was afforded a hearing before a Veterans Law Judge, but the Veteran withdrew that request in correspondence received in July 2021. Service Connection Gastrointestinal Condition The Veteran contends that he has a gastrointestinal condition, to include IBS and gastro esophageal reflux disease (GERD) that began during his active service. The Board finds the preponderance of the evidence supports a finding that the Veteran's gastrointestinal condition began during active service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the of filing the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During a general medical examination in November 2009, no gastrointestinal abnormalities or diseases were indicated. On VA examination in November 2014, the Veteran reported using over-the-counter medication to treat symptoms of infrequent episodes of epigastric distress, reflux, regurgitation, and sleep disturbance caused by esophageal reflux, occurring 4 or more times per year. The examiner explained that the Veteran's GERD was diagnosed in 2007, which was during his active service, and opined that the Veteran's GERD was at least as likely as not incurred while he served in the Southwest Asia Theater, because his symptoms started during service and continued after separation from active duty. In an additional evaluation in November 2014, the Veteran's diagnosis was listed as irritable bowel syndrome (IBS), with a diagnosis date of May 2014. The examiner stated that the Veteran's IBS was at least as likely as not caused by his active service as a presumptive condition, without further rationale. Based on the medical opinions of record, the Board finds that the Veteran's gastrointestinal condition is related to his active duty, in that it began during service and he continues to experience symptoms. Notably, there are no contrary medical opinions of record. As such, service connection is warranted. INCREASED RATINGS Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Posttraumatic Headaches The Veteran contends that his posttraumatic headaches warrant a compensable rating prior to April 21, 2017. During the course of the appeal, the Veteran was granted a 50 percent rating for posttraumatic headaches, effective April 21, 2017. This is the highest available rating for this disability. Under Diagnostic Code (DC) 8100 pertaining to headaches, a noncompensable rating is assigned for less frequent attacks; a 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over last several months; a 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating." Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). VA regulations also do not define "economic inadaptability." In Pierce v. Principi, 18 Vet. App. 440, 445 (2004), the Court examined the term "productive of severe economic inadaptability" in the criteria for a 50 percent rating under Diagnostic Code 8100, and noted that "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." Id. at 446. The Court explained that, "nothing in Diagnostic Code 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. 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. In addition, the Court acknowledged VA's concession that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. Records from VA examination for traumatic brain injury (TBI) in June 2014 indicated the Veteran experienced severe headaches. He stated that he always had a low-grade headache and severe headaches were triggered by noise or light; and would last 10 minutes to an hour. On VA examination for headaches in December 2014, the Veteran described sharp, intermittent headaches, with pain bilaterally 2 to 3 times per week, lasting 30 minutes to 2 hours, including nausea, changes in vision, lasting less than 1 day on both sizes of head. The examiner found that the Veteran did not have characteristic prostrating attacks. On VA examination for TBI in January 2016, the Veteran reported headaches causing sensitivity to light and sound, and anxiety. He indicated he missed work approximately 3 times a month due to headaches since 2010. On VA examination in April 2017 for headaches, the Veteran reported pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity. His headaches also caused nausea, sensitivity to light, sensitivity to sound, changes in vision, with a duration less than one day. The examiner remarked that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain, once a month with pain productive of severe economic inadaptability, and that the Veteran is not able to function during severe headaches and must call in sick or excuse himself from work. Based on the evidence of record, the Board finds a 50 percent rating is warranted for the entire appeal period. Indeed, while the December 2014 VA examiner found the Veteran did not have characteristic prostrating attacks, the evidence of record reveals the Veteran has consistently reported severe headaches that occurred multiple times per month and reported he missed work approximately 3 times a month due to headaches since 2010. As such, a 50 percent rating is warranted for the entire period on appeal. Low Back Strain The Veteran contends that his low back condition warrants a rating in excess of 10 percent. The Board finds that the Veteran's low back condition has not manifested in limitation of motion associated with a rating higher than 10 percent, and the appeal is denied. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for diagnostic codes 5235 to 5244, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), spondylolisthesis or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), degenerative arthritis of the spine (Diagnostic Code 5242) (for degenerative arthritis of the spine, see also Diagnostic Code 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (see either Diagnostic Code 5003 or Diagnostic Code 5010) (effective Feb. 7, 2021), intervertebral disc syndrome (Diagnostic Code 5243), and complete traumatic paralysis (Diagnostic Code 5244) (effective Feb. 7, 2021). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board notes that, effective February 7, 2021, Diagnostic Code 5242 was amended to include degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5244 was also added to add paraplegia and quadriplegia. Diagnostic Code 5237 was not changed. The Board notes that the spine regulations were also amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). With respect to arthritis, Diagnostic Code 5010 was clarified to rate posttraumatic arthritis according to limitation of motion, dislocation, or instability. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Formula for Rating intervertebral disc syndrome Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the U.S. Court of Appeals for Veterans Claims (Court) has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). On VA examination in July 2016, the Veteran's low back condition provoked pain on sitting and standing, but he did not report flare-ups. His range of motion was normal, but pain was exhibited with rest and non-movement as well as with weight-bearing. The examiner stated that the most recent MRI of the lumbar spine was unremarkable, with no further functional impairment found. The examiner noted the low back interfered with sitting and standing. Throughout the appeal period, the Veteran has been assigned a 10 percent rating for painful motion of his low back. A higher rating of 20 percent requires at least a limitation of forward greater than 30 degrees but not greater than 60 degrees. Throughout the appeal period, the Veteran's low back strain has not manifested in a limitation of flexion of 60 degrees or less. In light of that, a higher rating is not appropriate, and the appeal is denied. REASONS FOR REMAND Right Shoulder Condition The Veteran contends that he has a right shoulder condition related to his active service. The Board finds that further development is necessary in order to obtain sufficient evidence with which to adjudicate this claim. VA treatment notes show that as early as May 2014, the Veteran was noted to have a shoulder impingement. The Veteran was accorded a VA examination in November 2014. The examiner found that the Veteran did not have a current diagnosis associated with the claimed shoulder condition. The Veteran reported that a VA doctor diagnosed him with an impingement in April 2014. Range of motion measurements were all normal, but the Veteran exhibited pain on flexion, abduction, and internal rotation of the right arm. The examiner did not provide a nexus opinion, because the Veteran did not have a right shoulder condition for which an opinion could be provided. The examiner explained that there were no service medical records showing complaint, treatment, or diagnosis of a right shoulder condition. The Board notes that the November 2014 VA examination is contrary to the evidence of record, and as such, and adequate examination and opinion must be obtained. Accordingly, a remand is necessary for additional development. TDIU The Board finds that the issue of TDIU has been raised by the record, both in conjunction with the Veteran's claims for increased ratings, and from correspondence received from the Veteran's sister in January 2016. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantially gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. Marginal employment shall not be considered substantially gainful employment. Id. Marginal employment may also be held to exist, on a facts found basis, when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. However, there is insufficient evidence of record concerning the Veteran's employment history and effect of his service-connected conditions on his ability to work, and further development is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding personnel and VA medical records for this Veteran, to include any private medical records identified by the Veteran pertaining to his right shoulder. Obtain any necessary authorizations from the Veteran for outstanding relevant private records. All attempts to obtain this information shall be documented in the claims file. Then, schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed right shoulder condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should answer the following: Determine the nature and etiology of any shoulder disability, including to specifically address the diagnosed right shoulder impingement. For any current diagnosis or diagnoses rendered, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the current diagnosis began during active service or is otherwise caused or related to active service, to include as secondary to the Veteran's service-connected low back condition. The examiner is reminded that the Veteran is competent to describe his symptoms and past experiences. Additionally, the examiner must consider and reconcile the conflicting medical evidence of record, including the November 2014 evaluation. A complete medical rationale for all opinions expressed must be provided. 2. Provide the Veteran with a TDIU claim form and request that he provide all available information regarding his employment history for the entire period on appeal. The RO should also request authorization to obtain employment information from any current and former employers identified by the Veteran. If the Veteran provides sufficient identifying information and the appropriate authorization, the RO should attempt to contact current and former employers to obtain information about the conditions of his current and former employment, including wage and hour information, performance evaluations, and the Veteran's reason for leaving such employment. An appropriate period of time should be allowed for response. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.