Citation Nr: 21069889 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 20-11 356 DATE: November 22, 2021 REMANDED The issue of service connection for a gastrointestinal disorder, to include as secondary to service-connected disabilities, is remanded. The issue of service connection for fibromyalgia erythrocytosis (fibromyalgia) is remanded. The issue of an initial rating higher than 50 percent for migraine including migraine variants (migraine headaches) is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2001 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2018 and September 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board denied service connection for fibromyalgia and remanded the issues of service connection for a gastrointestinal disorder and an initial rating higher than 50 percent for migraine headaches for additional development. The Veteran appealed the portion of the May 2020 Board decision that denied service connection for fibromyalgia to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the May 2020 Board decision that denied service connection for fibromyalgia and remanding it for action consistent with the terms of the Joint Motion. The Veteran has raised the issue of a TDIU as part and parcel of the initial rating claim for migraine headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND 1. The issue of service connection for a gastrointestinal disorder, to include as secondary to service-connected disabilities, is remanded. The Veteran claims that his gastrointestinal disorder is due to his service-connected major depressive disorder. See Veteran's statement (March 2019). The medical evidence shows a current diagnosis of a gastrointestinal disorder, namely irritable bowel syndrome (IBS). See, e.g., VA examination report (November 2019). In May 2020, the Board remanded the issue of service connection for a gastrointestinal disorder to obtain a VA opinion that addresses whether the Veteran's gastrointestinal disorder was aggravated by his service-connected major depressive disorder (as a November 2019 VA examiner did not address the theory of aggravation) and for the opinion provider to address a medical article submitted by the Veteran. Pursuant to the May 2020 Board remand, a September 2020 VA opinion was obtained regarding whether the Veteran's gastrointestinal disorder was aggravated by his service-connected major depressive disorder and the opinion provider addressed the medical article submitted by the Veteran. Although the Veteran has not asserted that his gastrointestinal disorder had its onset during service or is related to his military service, the evidence raises the theory of service connection for a gastrointestinal disorder on a direct service connection basis. Specifically, in a May 2007 letter, the Veteran's former commander wrote that "the Veteran often has trouble with his health (stomach, back, legs and breathing)." See DPRIS Response (December 2017). In this case, a November 2019 VA examination report shows that the VA examiner indicated that the Veteran was diagnosed as having IBS, inflammatory bowel disease, and Crohn's disease, based on a July 2008 private treatment report. The November 2019 examiner opined that the Veteran's IBS, inflammatory bowel disease, and Crohn's disease, was incurred in or caused by his military service because he was diagnosed as having IBS, inflammatory bowel disease, and Crohn's disease, within one year of his separation from service. The November 2019 VA opinion is problematic for several reasons. For example, the November 2019 VA examiner indicated that the Veteran was diagnosed as having inflammatory bowel disease and Crohn's disease, based on a July 2008 private treatment report. However, the July 2008 private treatment report, CT of the abdomen and pelvis, shows that the Veteran had either infectious or inflammatory enteritis. Additionally, the examiner's positive opinion was based on his inaccurate finding that the Veteran's gastrointestinal disorder is a disease subject to presumptive service connection pursuant to 38 C.F.R. § 3.307, 3.309. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). To this end, the Veteran's gastrointestinal disorder, to include IBS, is not a chronic disease subject to presumptive service connection pursuant to 38 C.F.R. §§ 3.307, 3.309. Furthermore, the examiner found that the Veteran's gastrointestinal disorder was related to service, but provided no rationale, other than indicating that he was diagnosed as having a gastrointestinal disorder within a year after his separation from service. The examiner did not address that during the November 2019 examination, and during other treatment visits, that the Veteran reported that his gastrointestinal symptoms had its onset after his separation from service. In this case, there is no adequate opinion that addresses the Veteran's claim of service connection for a gastrointestinal disorder, on a direct service connection basis, including consideration of the in-service May 2007 letter. Additionally, the evidence also raises the question of whether the Veteran's gastrointestinal disorder is secondary to his service-connected HIV infection medication. For instance, in an October 2008 treatment record, the Veteran's treatment provider indicated that the Veteran had nausea, vomiting, and intermittent diarrhea since starting his new ARV regimen for his HIV infection. There is no VA opinion of record that addresses whether the Veteran's gastrointestinal disorder was caused or aggravated by his service-connected HIV infection, to include as due to his prescribed medication to treat his HIV infection. Therefore, a remand is necessary to obtain an addendum VA medical opinion that addresses the Veteran's claim of service connection for a gastrointestinal disorder on a direct and secondary service connection basis. 2. The issue of service connection for fibromyalgia is remanded. The Veteran claims that his fibromyalgia is due to his military service and that he has had symptoms of fibromyalgia in and since service. See Veteran's notice of disagreement (March 2019). As indicated above, in a June 2021 Order, the Court granted a Joint Motion, vacating the portion of the May 2020 Board decision that denied service connection for fibromyalgia and remanding it for action consistent with the terms of the Joint Motion. Specifically, the parties to the Joint Motion found that in the May 2020 Board decision, it did not address the Veteran's reports of fibromyalgia symptoms during his service in Pakistan and that a VA doctor recommended testing for fibromyalgia based on his symptoms. Additionally, the parties indicated that in the May 2020 Board decision, it did not address the Veteran's assertions that his fibromyalgia erythrocytosis qualified as a chronic disease under 38 C.F.R. §§ 3.307(a) and 3.309(a), as it is a blood disease. In this case, there is no VA opinion that adequality addresses the Veteran's assertions noted in the June 2021 Joint Motion. Therefore, a remand is necessary to obtain a VA opinion to determine the etiology of the Veteran's fibromyalgia, and for the examiner to address the Veteran's assertions regarding his fibromyalgia and/ or blood disease. 2. The issue of an initial rating higher than 50 percent for migraine headaches is remanded. 3. The issue of a TDIU is remanded. In May 2020, the Board remanded the issue of an initial rating higher than 50 percent for migraine headaches for an issuance of a statement of the case (SOC). To this extent, the Veteran timely disagreed with a September 2018 rating decision that assigned a 10 percent rating for migraine headaches. In January 2020, the AOJ awarded a 50 percent rating, effective the date of the Veteran's claim. In a January 2020 SOC the AOJ denied an earlier effective for the grant of service connection for migraine headaches. In the Board's May 2020 remand, it noted that the issue of an initial rating higher than 50 percent for migraine headaches was still on appeal, as extraschedular ratings are theoretically possible, and that a SOC had not been issued. Pursuant to the May 2020 remand, a July 2020 SOC was issued regarding an initial rating higher than 50 percent for migraine headaches and the Veteran submitted a timely VA form 9 to the July 2020 SOC. Accordingly, the issue of an initial rating higher than 50 percent for migraine headaches is properly on appeal. For the following reasons, the issue of an initial rating higher than 50 percent for migraine headaches must be remanded to obtain the Veteran's current employment status. To this extent, the Veteran is in receipt of the maximum schedular rating for migraine headaches under DC 8100 for the entire claim period. Throughout the appeal period, the Veteran reported that he had missed several days of work or that he went to work late due to his service-connected migraine headaches symptoms. See, e.g., VA examination report (November 2019). He explained that when he had headaches, he required a quiet dark place to rest. The evidence shows that the Veteran had been employed throughout the appeal period. However, during a July 2020 VA treatment visit, the Veteran reported that in October 2019, he switched positions and that he was recently placed on "FMLA and PCP wrote him out of work for 6 weeks." Thereafter, the Veteran reported that he wanted an extended leave from work due to several symptoms, including his inability to get out of bed. The Veteran's VA treatment records are only current throughout July 2020. In this case, the Veteran's employment status is pertinent to his rating claim for migraine headaches and entitlement to a TDIU. Notably, the Court had previously indicated that the award of a TDIU did not render an extraschedular issue moot, see Colayong v. West, 12 Vet. App. 524, 527 (1999) (VA "conceded... that the veteran's TDIU rating claim was a matter separate from the adjudication of his schedular or extraschedular rating claims and also that even if a TDIU rating is awarded, the veteran is still entitled to fair adjudication of those other claims"), it reached the opposite result in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In Johnson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321 (b)(1) performs a "gap-filling" function and accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. Id. The Federal Circuit thus indicated that an award of a TDIU would result in a veteran being deemed to have total unemployability, with no "gap" to fill by 38 C.F.R. § 3.321 (b). Thus, the award of a TDIU during the entire claim period for the service-connected migraine headaches might render the issue of an initial higher rating for migraine headaches on an extraschedular basis moot. Furthermore, while the Veteran has a combined schedular 100 percent rating, a grant of a 100 percent rating does not always render the issue of a TDIU moot. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). Therefore, a remand is necessary to obtain outstanding VA treatment records since July 2020 and request the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to verify the Veteran's employment status. The matters are REMANDED for the following action: 1. Request that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Afford the Veteran a reasonable opportunity for response. 2. Obtain a medical opinion from a physician on the etiology of the Veteran's gastrointestinal disorder. Schedule the Veteran for an examination at the discretion of the physician. The physician should review the entire claims file, before answering the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gastrointestinal disorder (including IBS) had its onset in service or is otherwise related to service. The examiner should address the May 2007 letter where the Veteran's former commander wrote that "the Veteran often has trouble with his health (stomach, back, legs and breathing)." See DPRIS Response pg. 67 (December 2017). b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gastrointestinal disorder was caused by his service-connected HIV infection, to include as due to his prescribed medications to treat his HIV infection, such as ARV. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gastrointestinal disorder was aggravated (worsened) by his service-connected HIV infection, to include prescribed medications to treat his HIV infection, such as ARV. The examiner should address the October 2008 treatment record where the Veteran's treatment provider indicated that the Veteran had nausea, vomiting, and intermittent diarrhea since starting his new ARV regimen for his HIV infection. The physician must provide a complete rationale for each opinion. 3. Obtain a medical opinion from a physician on the nature and etiology of the Veteran's fibromyalgia. Schedule the Veteran for an examination at the discretion of the physician. The physician should review the entire claims file, the physician should review the entire claims file, before answering the following: a. Identity the Veteran's fibromyalgia since the date of his claim in December 2017 by (1) diagnosis or (2) functional impairment, even if resolved. In addressing the above, the examiner should specifically address whether the Veteran has been diagnosed as having fibromyalgia erythrocytosis at any time during the pendency of the appeal. b. The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fibromyalgia had its onset in service or is otherwise related to service. The physician must address the following: i. The Veteran's reports of fibromyalgia symptoms during his service in Pakistan and that a VA doctor recommended testing for fibromyalgia based on his symptoms. ii. The Veteran's assertions that his fibromyalgia erythrocytosis is qualified as a chronic disease under 38 C.F.R. §§ 3.307(a) and 3.309(a), as it is a blood disease. (Continued on the next page) The physician must provide a rationale for each opinion. 4. Adjudicate the issue of entitlement to a TDIU, if applicable. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.