Citation Nr: 21009165 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 20-13 919 DATE: February 19, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to service-connected disability, is granted. Entitlement to an initial disability rating in excess of 30 percent for headaches is denied. REMANDED The issue of entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The probative evidence of record shows that it is at least as likely as not that the Veteran’s GERD is proximately due to or the result of his service-connected history of broken mandible with bilateral temporomandibular joint (TMJ) with otalgia. 2. The most probative evidence of record does not show that, during the period on appeal, the Veteran’s headaches were manifested by very frequent completely prostrating and prolonged attacks that produced severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD, as proximately due to service-connected disability, have been met. 38 U.S.C. §§ 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for an initial disability rating in excess of 30 percent for service-connected headaches have not been met. 38 U.S.C. §§ 1154 (a), 5107; 38 C.F.R. §§ 3.321 (b), 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a January 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s headaches to 30 percent, effective October 17, 2018. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case during the December 2019 VA examination the Veteran asserted that he was forced to retire due to his service-connected headaches. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Service Connection 1. Entitlement to service connection for GERD is granted. The Veteran contends that he has GERD due to his service-connected TMJ. A disability which is proximately due to, or aggravated by, a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). The evidence of record shows that the Veteran has a current diagnosis GERD. See, e.g., December 2019 VA examination. Therefore, there is evidence of a current disability. The Veteran submitted a February 2020 private medical opinion. The private examiner reviewed the claims file and relevant medical literature and opined that the Veteran’s GERD is at least as likely as not due to his service-connected TMJ and medication he takes related to his service-connected TMJ. As rationale, the private examiner noted that the Veteran reported chronic pain related to his TMJ and that he his prescribed medication to treat his pain. The private examiner explained that gastrointestinal issues are among the most common side effects of nonsteroidal anti-inflammatory drugs (NSAID). The private examiner further explained that risk for contracting GERD was doubled through the use of a NSAID prescription. As such, the private examiner concluded that it is more likely than not that the Veteran’s GERD is secondary to his NSAID use. The Board accepts this statement as probative evidence that the Veteran’s GERD is proximately caused by his service-connected TMJ. Thus, the probative evidence of record shows that it is at least as likely as not that the Veteran’s GERD is proximately caused by his service-connected TMJ. As such, the Board finds that service connection for GERD, as secondary to his service-connected TMJ, is warranted. See 38 C.F.R. § 3.310. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 2. Entitlement to a higher initial rating for headaches is denied. The Veteran seeks a higher initial rating for his service-connected headaches. The Veteran’s service-connected headaches are rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The applicable rating period is from October 17, 2018, the effective date for the award of service connection for headaches through the present. See 38 C.F.R. § 3.400. Under Diagnostic Code 8100 a noncompensable rating is warranted for less frequent attacks as required for a 10 percent rating. A 10 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once in 2 months over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and the maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. The rating criteria do not define “prostrating.” By way of reference, the Board notes that DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), defines “prostration” as “extreme exhaustion or powerlessness.” Turning to the relevant evidence of record, the Veteran’s medical treatment records do not include findings relevant to rating the Veteran’s migraine headaches under Diagnostic Code 8100. They reflect that the Veteran endorsed headache pain, however, they do not indicate or suggest that the headaches included characteristic prostrating attacks. The Veteran was provided a VA examination in December 2018. The Veteran reported daily headaches in the temples and behind his ears. Upon examination, the Veteran reported daily pain on both sides of the head with no non-headache symptoms. The Veteran did not report characteristic prostrating attacks of migraine/non-migrating headache pain. The Veteran was provided a VA examination in December 2019. The Veteran reported dizziness and loss of equilibrium and blurred vision. He further reported that he has to lay down in a dark room. Upon examination, the Veteran reported constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head and pain worsens with physical activity. He further reported non-headaches symptoms of nausea, sensitivity to light, sensitivity to sound, dizziness, jaw popping, tinnitus and anxiety. The Veteran stated that he has characteristic prostrating attacks of migraine/non-migraine headache pain once every month. He reported that he retired because of his headaches. In view of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent for his service-connected headaches. The December 2018 VA examination report reflects that the Veteran experiences daily headaches without characteristic prostrating attacks. The December 2019 VA examination report reflects that the Veteran suffers from characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The Veteran did not report very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. To the extent the Veteran contends that he experiences migraine symptoms more consistent with the 50 percent rating criteria under Diagnostic Code 8100, the Board finds that his assertions are outweighed by the contemporaneous medical evidence of record, which do not show completely prostrating and prolonged attacks productive of severe economic inadaptability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Accordingly, the Board finds that the record does not show that the Veteran is entitled to a disability rating in excess of 30 percent for his service-connected migraine headaches. The Board therefore finds that the criteria for a higher initial disability rating for the Veteran’s headaches have not been met at any time during the rating period. To the extent the Veteran seeks a higher initial disability rating, the preponderance of the evidence is against the assignment of a higher initial disability rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As noted in above, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran’s claim for a higher disability rating. See Rice, 22 Vet. App. 447. As the RO has not yet considered whether the Veteran is entitled to a TDIU, the issue must be remanded to the RO for appropriate development and initial adjudication The matters are REMANDED for the following action: 1. Send the Veteran a notification letter with respect to the issue of entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 2. Complete any necessary development in view of the Veteran’s response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. (Continued on the next page)   3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether a TDIU may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.