Citation Nr: 21021201 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-07 149 DATE: April 12, 2021 ORDER Entitlement to a disability rating in excess of 30 percent prior to September 12, 2017 for migraine headaches is denied. Entitlement to a disability rating in excess of 10 percent for hiatal hernia, gastritis, and chronic distal esophagitis is denied. FINDINGS OF FACT 1. Prior to September 12, 2017, migraine headaches manifested with prostrating attacks occurring on average once a month over the last several months; and are not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 2. Hiatal hernia, gastritis, and chronic distal esophagitis is manifested with persistent episodes of epigastric distress, dysphagia, pyrosis, reflux, substernal pain, and sleep disturbance without considerable or severe impairment of health. CONCLUSIONS OF LAW 1. Prior to September 12, 2017, the criteria for a disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1– 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 10 percent for hiatal hernia, gastritis, and chronic distal esophagitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to November 1994. The Veteran appeared at a Board hearing in June 2020; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Rating Principles 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. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Migraine headaches The Veteran is rated at 30 percent disabling from January 8, 2014 (the date of the receipt of the claim for an increase) to September 12, 2017, when the Veteran was awarded a 50 percent rating, under diagnostic code 8100. During the June 2020 Board hearing, she testified that her headaches are especially worse during allergy season and that she has increased vomiting. She further testified that she has had to miss work due to the headaches. The Veteran’s headaches are evaluated under Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability evaluation is assigned where there are characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For the schedular maximum 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Productive of severe economic adaptability has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that productive of can either have the meaning of producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually produce severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, economic inadaptability does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. A higher evaluation of 50 percent is not warranted unless the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA treatment records show continued treatment for complaints of intermittent migraine headaches, but no indication of prolonged or very frequent prostrating attacks of migraine headaches resulting in economic inadaptability. For example, a December 2013 VA treatment record, several days before the filing of the claim for an increased rating, notes frequent occipital headaches and use of medication, but no other symptoms. A May 2014 treatment record indicates one to two migraines a month, with no recent change of characteristics of migraines. A June 2017 VA treatment record states no neurologic deficits and no warning symptoms. A VA headaches examination conducted in April 2015 reports that the Veteran experienced headaches occurring approximately seven times per month and lasting on average four hours at a time, but that the Veteran was not on medication specifically used to treat migraine headaches. She reported last attack was two weeks before. Stress worsened headaches and she had switched jobs to reduce the amount of stress she was under. She had pain in the back of the head, radiating to front, described as aching and feeling like someone was popping her head out. She described it as like a tension headache. Duration was less than one day typically. The examiner indicated that the Veteran does not experience any characteristic prostrating attacks of migraine headaches and that they do not affect her ability to work. The Veteran’s current rating is based on a September 12, 2017 VA treatment record, which states the Veteran reported lingering headache (migraines) with a history of migraines, stating she has had approximately three migraines within the last week with approximately three episodes of vomiting. Medication (Fioricet) was effective for the most part, however, she is now left with a lingering headache that will not resolve. The Veteran denied severe headache/unbearable pain, injury, vision disturbance, syncope, or persistent nausea/vomiting. An additional VA treatment note dated in the latter half of September 2017, states the Veteran reported she had been doing well until approximately two weeks prior. A 2020 VA examination found current symptoms of nausea, vomiting, and sensitivity to sound, light, and odors with occipital headaches, typically lasting two days with prostrating attacks productive of severe economic inadaptability. The Veteran reported being unable to work in any jobs which would not let her make use of a quiet room during headache episodes. There is no report of when these more severe symptoms started. A 30 percent evaluation for migraine headaches, based on characteristic prostrating attacks occurring on an average once a month over last several months, is appropriate for the time period prior to the current effective date. Here, the RO assigned the date of the 50 percent rating based on a treatment record. Prior to this date, the Board finds that a 30 percent evaluation is warranted. A review of the medical and lay evidence of record indicates that the Veteran's migraine headaches more closely approximate the rating criteria for a 30 percent evaluation for this period on appeal. The RO correctly identified the exact period of worsening, in early September 2017. A higher evaluation of 50 percent is not warranted for migraine unless the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA examination and medical records do not indicate that the Veteran’s migraine headaches have resulted in severe economic inadaptability, and the Veteran’s lay statements do not indicate that manifestations of migraine headaches amount to severe economic inadaptability prior to September 12, 2017. Rather, the reported symptoms are consistent with a 30 percent evaluation. Specifically, the only mention of economic or employment impacts in the probative evidence of record is that stress-related to work worsened headaches and there were no other reported impacts at all. In reaching this finding, the Board acknowledges that the Veteran is competent to testify to such lay observable symptomatology. As such, these statements are entitled to probative value as to the severity of headaches during this appeal. However, the Veteran has not specifically stated economic inadaptability, consistent with a 50 percent evaluation, existed prior to the current effective date of the increase. In addition, any such statements are contradicted by the more probative evidence, including her reports contained in the medical evidence, which note less severe symptoms then contemplated by a 50 percent rating. Therefore, a higher evaluation of 50 percent is not warranted for migraine headaches as the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Hiatal hernia, gastritis, and chronic distal esophagitis, claimed as GERD At the Board hearing, the Veteran testified that she has increased difficulty swallowing, sore throat, heartburn, and reflux due to the service-connected esophageal disability. The Veteran’s service-connected gastrointestinal disability is currently rated as 10 percent disabling under DC 7399-7346 as analogous to hiatal hernia. Under DC 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent 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 60 percent 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. 38 C.F.R. § 4.114, DC 7346. VA treatment records showed continued treatment for symptoms with medication, but no findings or complaints of associated dysphagia are noted. Endoscopic examination in December of 2014 showed mild gastritis, but no findings of eroded or ulcerated areas were noted. No findings or determination of dysphagia as a result of gastrointestinal disorder, or endoscopic findings of gastritis with resulting gastric erosion or hypertrophy are noted. A VA examination conducted in April 2015, reported that the Veteran continued to experience heartburn and reflux with a sensation of food getting stuck in her throat, but the Veteran reported no dysphagia or difficulty swallowing. No complaints of regurgitation, substernal or arm pain, or resulting impairment of health were noted. Symptoms were persistently recurrent epigastric distress with pyrosis and reflux. The examiner diagnosed hiatal hernia and GERD and indicated that this did not impact ability to work. A VA examination occurred in September 2020. At that time, the Veteran reported ongoing symptoms of recurrent epigastric distress with dysphagia, pyrosis, and substernal pain. This also caused a sensation that as if something is stuck in her throat. She had sleep disturbance four or more times per year, lasting 10 days or more. She had periodic abdominal pain. The examiner found no occupational impairment related problems or evidence of considerable or severe impairment of health. The Board concludes that a rating greater than 10 percent is not warranted, as the evidence does not demonstrate considerable or severe impairment of health due to the symptoms of the disorder. The Board finds that the Veteran’s disability was manifested by symptoms that included persistent episodes of epigastric distress, dysphagia, pyrosis, reflux, substernal pain, and sleep disturbance caused by esophageal reflux, but not by more severe symptoms required for an increased 30 percent rating under Diagnostic Code 7346, as there existed no considerable impairment of health. Likewise, a higher, 60 percent disability rating is not warranted as there was no material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. As such, the Board concludes that the evidence does not demonstrate persistently recurrent symptoms productive of considerable impairment of health or symptoms productive of severe impairment of health as necessary for a rating greater than 10 percent. In sum, the Board finds that the Veteran’s disability was manifested by symptoms that included infrequent episodes of epigastric distress, reflux, regurgitation, substernal pain, pyrosis, and sleep disturbance, but not by more severe symptoms of persistently recurrent epigastric productive of considerable impairment of health. The Board therefore concludes that throughout the appeal period, a rating greater than 10 percent for the Veteran's gastrointestinal problems is not warranted. Furthermore, the Board concludes that the Veteran’s symptomatology has been sufficiently consistent throughout this period that assignment of staged ratings is not appropriate. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.