Citation Nr: 21068271 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-33 173 DATE: November 9, 2021 ORDER Entitlement to a rating in excess of 50 percent for migraine headaches prior to October 16, 2017 is denied. Entitlement to a 50 percent rating, but no higher, for migraine headaches is granted from October 16, 2017. Entitlement to service connection for a gastrointestinal disorder is granted. Entitlement to secondary service connection for eczema is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from December 15, 2010 to August 10, 2017. Entitlement to basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted from December 15, 2010 to August 10, 2017. REMANDED Entitlement to service connection for a skin disorder other than eczema is remanded. Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Prior to October 16, 2017, the Veteran's migraine headaches have been assigned the maximum schedular evaluation. 2. Since October 16, 2017, the Veteran's migraine headaches have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran's irritable bowel syndrome (IBS) is a medically unexplained chronic multisymptom illness that has manifested to a compensable degree, and celiac sprue is related to the Veteran's service. 4. The Veteran's eczema is proximately due to his gastrointestinal disorder. 5. From December 15, 2010 to August 10, 2017, the Veteran's obstructive sleep apnea (OSA), migraine headaches, and narcolepsy have rendered him unable to secure or follow a substantially gainful occupation. 6. From December 15, 2010 to August 10, 2017, the Veteran had a permanent and total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for migraine headaches prior to October 16, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a 50 percent rating, but no higher, for migraine headaches are met from October 16, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. 3. The criteria for entitlement to service connection for a gastrointestinal disorder are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to secondary service connection for eczema are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for entitlement to a TDIU are met from December 15, 2010 to August 10, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 6. The criteria for entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 are met from December 15, 2010 to August 10, 2017. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.3807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1990 to February 1991 and in the Navy from May 1992 to January 1996, including service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2012 and April 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in October 2019. The Board has bifurcated the skin disorder claim as reflected on the title page, as a favorable determination with regard to eczema is warranted at this time. 1. Entitlement to a rating in excess of 50 percent for migraine headaches prior to October 16, 2017 is denied. 2. Entitlement to a 50 percent rating, but no higher, for migraine headaches is granted from October 16, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's migraine headaches are currently rated pursuant to DC 8100. Under DC 8100, 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 maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define "prostrating." By way of reference, the Board notes that according to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." By way of background, an August 2006 rating decision awarded service connection for migraine headaches and assigned a noncompensable rating, effective February 15, 2006. A February 2008 rating decision increased the rating to 50 percent, effective February 15, 2006, and a September 2020 rating decision reduced the rating to 30 percent from October 16, 2017. The current appeal period before the Board begins on December 15, 2010, the date VA received the Veteran's increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Prior to October 16, 2017, a rating in excess of 50 percent is not warranted. Here, the Veteran is already in receipt of the maximum schedular rating available under DC 8100 for migraine headaches. Accordingly, no higher schedular rating is available and no other diagnostic code may be considered. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Therefore, a rating higher than 50 percent is precluded for this period. Beginning October 16, 2017, a maximum 50 percent rating is warranted. On that date, during his VA examination, the Veteran endorsed pulsating, throbbing headache pain on both sides of the head occurring twice a week, typically lasting two days, with associated sensitivity to light and sound and changes in vision manifested by bright halo, bright dots, or dark spots in front of both eyes. He reported that his headaches were aggravated by brightness, loud noise, head movement, and physical activity and sometimes precipitated by sleep deprivation. He indicated relieving his headaches by being in a quiet dimmed area and not moving his head. He also reported taking Imitrex, Tylenol, or Ibuprofen as needed and taking Pregabalin as preventive treatment. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain averaging once or twice a month, noting he was in bed each time for about 6-8 hours. The examiner also found that the Veteran's headache condition impacted his ability to work, as he reported experiencing such severe headaches that he was unable to read, watch television, or walk outside. Furthermore, the Veteran reported being incapacitated because of his headaches and described trouble focusing on activities due to sensory hypersensitivity, including sensitivity to light, noise, and odors. See July 2017 private opinion. He stated that he "need[ed] a dark, quiet, cool room during the headaches or they persist and worsen," and described difficulty remaining on task due to memory disturbances and blurry vision during and following his headaches, and a private examiner determined that such symptoms would affect his employability. Given the evidence above and without considering the ameliorative effects of medication, the Veteran's migraine headaches more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the Board affords the Veteran the benefit of the doubt in this regard. While the October 2017 VA examiner determined that the Veteran did not have very frequent prostrating and prolonged headache attacks, this is in conflict with his description of prostrating headaches lasting for days and severe enough so that the Veteran has to be in bed for 6-8 hours, and instead more closely approximates prolonged attacks and is consistent with a frequency, severity, and duration associated with severe economic inadaptability. The examiner also indicated that the Veteran's headaches did not recently change or progress since 1993, which is supportive of a 50 percent rating since it has been continuously rated at 50 percent disabling prior to October 2017. Accordingly, a maximum rating of 50 percent is warranted from October 16, 2017. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As mentioned above, the Veteran served in the Southwest Asia during the Persian Gulf War. Service connection may be granted for certain disabilities occurring in Persian Gulf veterans, specifically when a Persian Gulf veteran exhibits objective indications of a qualifying chronic disability provided that such disability: (1) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021 and (2) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. A qualifying chronic disability includes a medically unexplained chronic multisymptom illness, such as irritable bowel syndrome (IBS), that is defined by a cluster of signs or symptoms. Id. 3. Entitlement to service connection for a gastrointestinal disorder, to include IBS and celiac sprue, is granted. The Veteran is currently diagnosed with celiac sprue and IBS. See September 2010 private opinion; See March 2013 and April 2017 VA examination reports. Notably, IBS is considered a functional gastrointestinal disorder, and is therefore a qualifying chronic disability under 38 C.F.R. § 3.317. Moreover, the April 2017 VA examiner determined the Veteran's IBS resulted in frequent episodes of bowel disturbance and abdominal distress, which is consistent with a 10 percent rating under 38 C.F.R. § 4.114, DC 7319 (irritable colon syndrome). Accordingly, presumptive service connection for IBS is established under C.F.R. § 3.317, and the remainder of this discussion will focus on diagnosed celiac sprue, for which the first element of direct service connection is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran's service treatment records (STRs) cannot be located and therefore are unavailable for review. See April 2017 correspondence. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran has competently and credibly reported experiencing gastrointestinal symptoms such as diarrhea and bloating in service. See September 2010 private opinion. Affording him the benefit of the doubt, element two is also met. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. (In this regard, the March 2013 and April 2017 VA opinions against the claim are of no probative value for lack of sufficient rationale.) Specifically, in a September 2010 statement, a private examiner opined that the Veteran's gastrointestinal disorders were likely related to service, based on the Veteran's competent and credible reports as to the onset and nature of his symptoms during service as well as a review of pertinent medical records. In support of her opinion, the examiner noted the Veteran's report of symptoms during service and determined that he currently still continued to experience the same gastrointestinal symptoms as he did in service. As this favorable opinion is well-reasoned and based on the Veteran's competent and credible lay statements, the nexus element is satisfied, and the benefit sought on appeal is granted. 4. Entitlement to secondary service connection for eczema is granted. As secondary service connection under 38 C.F.R. § 3.310(a) is warranted, the Board need not address the Veteran's contentions on direct service connection. Here, the Veteran is currently diagnosed with eczema (see March 2013 and April 2017 VA examination reports) and is now service-connected for a gastrointestinal disorder, which includes a diagnosis of celiac sprue, as discussed above. Thus, the first two elements of secondary service connection are established. Regarding the last element, nexus, the only adequate opinion of record addressing the etiology of the Veteran's eczema is the March 2013 VA examiner. Based upon a review of the claims file, interview, and examination of the Veteran, the examiner stated that eczema was a hypersensitive person's autoimmune response to varieties of food and environmental agents and indicated that one that one of the symptoms of celiac sprue was an eczematosa skin condition. This opinion is demonstrative of an etiological relationship between the Veteran's gastrointestinal disorder and his eczema, and the Board will afford the Veteran the benefit of the doubt in this regard and find a proximate cause relationship between them. Accordingly, secondary service connection for eczema is granted. The Board acknowledges the opinion of the April 2017 VA examiner, who indicated that the cause of eczema was unknown but believed to be multifactorial. Since the examiner did not consider whether it was related to his gastrointestinal disorder, this opinion is afforded no probative value. 5. Entitlement to a TDIU is granted from December 15, 2010 to August 10, 2017. A December 2017 rating decision awarded a TDIU, effective August 10, 2017. As the Veteran's migraine headaches are part of the basis for the award of a TDIU, his entitlement to a TDIU over the entire length of the migraine headaches appeal period is before the Board. Harper v. Wilkie, 30 Vet. App. 356 (2018). A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. For the period prior to August 10, 2017, the Veteran is rated at 50 percent for OSA from November 16, 2004, 50 percent for migraine headaches from February 15, 2006, 40 percent for fibromyalgia from December 15, 2010, and 10 percent for narcolepsy from March 15, 2006. Thus, the Veteran meets the criteria for consideration of a TDIU on a schedular basis for the entire appeal period beginning December 15, 2010. 38 C.F.R. § 4.16(a). Thus, what remains to be determined is whether the functional impairment associated with his service-connected disabilities are of such nature and severity as to preclude substantially gainful employment between December 15, 2010 to August 10, 2017. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence reflects that the Veteran last worked in December 2005 and that he does not receive income from employment exceeding the federal poverty threshold. See August 2017 VA Forms 21-4192; see also August 2017 VA Form 21-8940. Accordingly, Board finds that the economic component of entitlement to a TDIU is met because the record shows that the Veteran has not been employed during the appeal period. Regarding the noneconomic component, the Veteran reported completing two years of college with no other education or training. See August 2017 VA Form 21-8940. The evidence of record indicates that the Veteran is unemployable due to his service-connected OSA, migraine headaches, and narcolepsy. The Veteran's last employer indicated that it became medically necessary for him to resign, explaining the Veteran had multiple medical problems, including narcolepsy, and that his symptoms worsened, nothing that he became unable to drive to and from work, was very tired at work, and had difficulty focusing. See August 2017 VA Form 21-4192. In a July 2017 private opinion, an examiner noted that the Veteran experienced excessive daytime sleepiness and sleep inertia/drunkenness as a result of his OSA, and determined that he would have difficulty with concentration, attention, and higher level executive functioning due to fatigue. She also indicated that the Veteran's social interactions and behaviors may be affected due to fatigue with irritability, in addition to potential safety concerns caused by daytime fatigue that would prohibit him from working in hazardous environments. Regarding migraine headaches, the examiner indicated that the Veteran would have difficulty directing attention to duties due to sensory hypersensitivity and remaining on task due to memory disturbances and blurry vision. Also, as already discussed in detail above, the Board has determined that the Veteran's migraine headaches are more nearly approximated by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which the Board finds is demonstrative of an inability to work. As for narcolepsy, the examiner noted that the Veteran experienced excessive daytime sleepiness that interfered with normal activities and intermittent, uncontrollable episodes of falling asleep during the daytime, stating that such sudden sleep attacks could occur during any type of activity at any time. She indicated that the Veteran would experience mental cloudiness, a lack of energy and concentration, memory lapses, depressed mood, and/or extreme exhaustion due to his narcolepsy that would preclude employment. A November 2017 VA examiner indicated that the Veteran's narcolepsy impacted his ability to work, based on his reports of not being able to drive a vehicle. The July 2017 examiner determined that the Veteran had documented cognitive dysfunction and functional loss related to the above service-connected disabilities and associated symptomatology and concluded he was permanently and totally disabled, and therefore unemployable due to the overall instability and progressive nature of his disabilities. Additionally, she pointed that the medications and the associated side effects, such as confusion and dizziness, would hamper the Veteran's ability to function safely in any type of environment. Given the Veteran's educational and occupational background and the above-cited medical evidence of record, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected OSA, migraine headaches, and narcolepsy. Accordingly, a TDIU is warranted from December 15, 2010 to August 10, 2017. 6. Entitlement to basic eligibility to DEA under 38 U.S.C. Chapter 35 is granted from December 15, 2010 to August 10, 2017. The Veteran was awarded basic eligibility to DEA, effective August 10, 2017, based upon a determination that he was totally and permanently disabled by virtue of his TDIU evaluation. See December 2017 rating decision. As the Veteran is now entitled to a TDIU from December 15, 2010 to August 10, 2017, he is eligible for DEA benefits during that same period. Accordingly, entitlement to basic eligibility to DEA is warranted from December 15, 2010 to August 10, 2017. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. REASONS FOR REMAND 7. Entitlement to service connection for a skin disorder other than eczema is remanded. Remand is necessary, because the March 2013 VA examiner did not adequately address the etiology of the Veteran's hyperhidrosis. Therefore, an addendum opinion is warranted on remand, which should also consider secondary service connection in relation to the Veteran's eczema. 8. Entitlement to service connection for a respiratory disorder is remanded. The Veteran was afforded a VA respiratory examination in April 2017. However, an etiological opinion was not provided. Accordingly, an addendum opinion is necessary on remand, in addition to any outstanding treatment records. 9. Entitlement to service connection for tinnitus is remanded. Remand is warranted as the August 2012 VA examiner's opinion is inadequate. In this regard, the examiner opined that the Veteran's tinnitus was less likely than not related to service but concluded that he could not determine the etiology without resorting to mere speculation. Thereafter, the Veteran's representative raised the theory of secondary service connection, asserting that the Veteran's tinnitus may be secondary to his service-connected OSA and migraine headaches and cited to medical articles in support of such correlations. See August 2021 Appellate Brief. Thus, an addendum opinion is necessary on remand, as well as an opinion addressing secondary service connection. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's skin disorder other than eczema. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that hyperhidrosis (see March 2013 VA examination report): (a) had its onset in or is otherwise related to service, to include as a result of conceded environmental exposures (e.g., burn pits, oil fires, sandstorms) in Southwest Asia; (b) is proximately due to service-connected eczema; (c) has been aggravated (worsened) by service-connected eczema. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. 4. Then obtain an addendum opinion from a VA examiner addressing the etiology of the Veteran's respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. After a review of the claims file, the examiner should address the following: (a) Explicitly rule in or exclude a diagnosis of asthma during the pendency of the Veteran's claim (i.e. since December 2010), even if such disease is currently asymptomatic or has been resolved during the pendency of the claim. If a diagnosis of asthma is not warranted, please reconcile this finding with the notation of "asthma/COPD" in the Veteran's December 2014 VA treatment record. (b) If a diagnosis of asthma is warranted, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease manifest within 10 years of service separation, or by January 23, 2006. (a) For all other diagnosed respiratory disorders, including chronic obstructive pulmonary disease, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disorder had its onset in or is otherwise related to service, to include as a result of conceded environmental exposures (e.g., burn pits, oil fires, sandstorms) in Southwest Asia. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. 5. Then obtain an addendum opinion from an examiner other than the August 2012 VA examiner addressing the etiology of the Veteran's tinnitus. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus: (a) had its onset in or is otherwise related to service; (b) is proximately due to service-connected OSA, migraine headaches, and/or any medications used to treat the same; or (c) has been aggravated (worsened beyond natural progression) by service-connected OSA, migraine headaches, and/or any medications used to treat the same. In addressing these questions, please consider and discuss the medical articles cited by the Veteran's representative in August 2021, including: https://lowtcenter.com/news-article/sleep-apnea-tinnitus-hearing-loss/; https://www.nature.com/articles/s41598-020-65395-1; https://americanmigrainefoundation.org/resource-library/understanding-migrainetinnitus-and-headache/. In answering (b)(2) and (b)(3), please note there is no temporal requirement that the primary condition (OSA/migraine headaches) be service-connected, or even diagnosed, at the time the secondary condition (tinnitus) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.