Citation Nr: 21021207 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-09 372 DATE: April 12, 2021 ORDER Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to an initial compensable rating for migraine headaches is remanded. FINDING OF FACT For the entire initial rating period on appeal, the Veteran’s GERD manifested by symptoms of epigastric distress, pyrosis, and regurgitation but without accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for the service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1987 to August 1993 and from July 2010 to February 2011. The Veteran also served in the Air National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision. In September 2019, the Board remanded the appeal for additional evidentiary development. Entitlement to an initial rating in excess of 10 percent for GERD. The Veteran is appealing the initial disability rating assigned for his GERD. He is currently in receipt of a 10 percent evaluation effective September 25, 2012, under Diagnostic Code 7399-7346. The Veteran contends that he is entitled to a 30 percent evaluation for his service-connected GERD due to persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation productive of considerable impairment of health. See March 2015 Correspondence. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Where a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran’s diagnosis of GERD is not specified in the Rating Schedule. Thus, the Veteran has been rated by analogy under Diagnostic Codes 7399-7346. Diagnostic Code 7399 is a general reference to the rating criteria for disabilities of the digestive system. Diagnostic Code 7346 provides the rating criteria for hiatal hernia. These are the appropriate Diagnostic Codes for rating by analogy because they reference both the anatomical localization of the Veteran’s GERD (the digestive system, specifically the esophagus and stomach) and the symptoms (including epigastric distress, dysphagia, pyrosis, and regurgitation). As these diagnostic codes reference both the location and symptoms of the Veteran’s GERD, rating by analogy is appropriate. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned 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 assigned 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, Diagnostic Code 7346. In May 2014, the Veteran underwent a VA esophageal conditions examination. T eh VA examiner diagnosed GERD and gastroparesis. The Veteran indicated that he required continuous medication. The medication helped his symptoms. His symptoms included periods of constipation, periods with bowel movements occurring 3 to 4 times per day, abdominal pain, bloating, and early satiety. The VA examiner indicated that the Veteran’s conditions were manifested by persistently recurrent epigastric distress, pyrosis, reflux, sleep disturbance caused by esophageal reflux occurring four or more times per year, and periodic nausea. There were no esophageal strictures, spasms of the esophagus, or acquired diverticulum of the esophagus. The Veteran’s conditions impacted his ability to work due to increased breaks during flare-ups. The Veteran underwent his most recent VA examination in July 2020. The VA examiner diagnosed GERD. The Veteran indicated that the severity of his GERD has stayed the same. The signs and symptoms attributable to his GERD included reflux; regurgitation; substernal pain; sleep disturbance caused by esophageal reflux occurring 3 times per year and lasting between 1 and 9 days; and, nausea occurring 4 or more times per year for less than 1 day. There were no other signs or symptoms noted on the examination report. The VA examiner found that the Veteran’s GERD was not productive of persistently recurrent epigastric distress. In September 2019, the Board remanded the issue of entitlement to an increased evaluation for GERD to obtain a VA examination to obtain clarification regarding which symptoms were caused by the service-connected GERD and the non-service-connected gastroparesis. In July 2020, the VA examiner found that the Veteran only had GERD. She indicated that the Veteran’s GERD did not impact his ability to work. The Veteran’s treatment records do not show that the Veteran’s GERD has caused considerable impairment of health. They reflect that the Veteran is diagnosed with GERD and takes medication to treat his condition. In September 2013, the Veteran’s primary care certified physician assistant wrote that the Veteran had GERD manifested by abdominal pain and heartburn. She indicated that the Veteran maintained a good level of overall health. The Board finds that the weight of the evidence is against a 30 percent evaluation for the Veteran’s GERD. A 30 percent evaluation is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The May 2014 VA examination report and May 2015 statement from the Veteran indicates that the Veteran does not experience substernal, arm, or shoulder pain. Additionally, none of the examination reports of record indicate that the Veteran’s GERD is productive of considerable impairment of health. Furthermore, the Veteran’s primary care certified physician assistant indicated that he was in good overall health. In short, the evidence does not demonstrate that the Veteran’s GERD is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In reaching the conclusion, the Board has considered the Veteran’s lay statements. The Veteran’s lay statements do not show that he has experienced substernal, arm or shoulder pain. Furthermore, the Board finds his assertion that his GERD is productive of considerable health impairment is outweighed by the VA examinations and September 2013 letter from his primary care certified physician assistant. These reports were based upon consideration of the Veteran’s reports of symptomology and the specialized medical expertise of the providers. Therefore, they are highly probative. Based upon the forgoing, an evaluation greater than 10 percent for the service-connected GERD is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7399-7346. REASONS FOR REMAND Entitlement to an initial compensable rating for migraine headaches is remanded. In September 2013, N.D., the Veteran’s primary care certified physician assistant, wrote, that he was diagnosed with atypical migraines that can mimic a cerebral accident in their symptoms. The Veteran required prophylactic medical therapy and abortive treatment. May 2019 VA treatment notes indicate that the Veteran’s headaches had been reduced to one or less headaches per month and that they were less severe after his medication was increased. In July 2020, the Veteran was afforded a VA headache examination and the VA examiner found that the Veteran did not have characteristic prostrating attacks of headache pain. The VA examiner did not explain whether the Veteran’s migraines would be manifested by characteristic prostrating attacks in the absence of medication. In rating migraines under Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). There is conflicting evidence regarding whether the Veteran’s migraine headaches are manifested by characteristic prostrating attacks of headache pain when the ameliorative effects of medication are not considered. A remand is required to obtain an adequate VA examination. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must indicate whether the Veteran’s migraine headaches are manifested by characteristic prostrating attacks. The examiner must also discuss the medication treatment regimen prescribed (and the relief/additional symptomatology (e.g., drowsiness) that results), as well as the level of functioning remaining during the headaches, both with and without medication. Finally, the examiner must describe the frequency and duration of any characteristic prostrating attacks and indicate whether the headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A complete rationale for all opinions must be provided. The explanation in response to this question should cite to the factual data in the record that supports that the Veteran’s migraine headaches are/are not characterized by characteristic prostrating attacks and productive of severe economic inadaptability. The explanation must also support the findings regarding duration, frequency, and level of functioning remaining when they occur. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.