Citation Nr: 21032413 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-12 691 DATE: May 27, 2021 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to a 30 percent rating, but not higher, for pansinusitis for the period prior to August 7, 2019, is granted. Entitlement to a rating in excess of 50 percent for pansinusitis as of August 7, 2019, is denied. Entitlement to a rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disease prior to August 7, 2019, is denied. Entitlement to a rating in excess of 60 percent for hiatal hernia with gastroesophageal reflux disease as of August 7, 2019, is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to August 7, 2019, and in excess of 30 percent as of August 7, 2019, for a cervical spine disability is remanded. Entitlement to a rating in excess of 10 percent prior to August 7, 2019, and in excess of 40 percent as of August 7, 2019, for right carpal tunnel syndrome with right upper extremity radiculopathy, is remanded. Entitlement to a compensable rating prior to August 7, 2019, and in excess of 30 percent for esophageal stricture as of August 7, 2019, is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Migraine headaches originated during active service. 2. Prior to August 7, 2019, pansinusitis was manifested by no more than multiple non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge and requiring prescribed antibiotic medication and no incapacitating episodes of sinusitis or sinus surgery. 3. As of August 7, 2019, pansinusitis has been rated as 50 percent, the maximum schedular rating under 38 C.F.R. § 4.97, Diagnostic Code 6510. 4. Prior to August 7, 2019, hiatal hernia with gastroesophageal reflux disease, alone, was shown to be manifested by no more than substernal pain and to be well controlled by prescribed medication. 5. As of August 7, 2019, hiatal hernia with gastroesophageal reflux disease has been rated as 60 percent, the maximum schedular rating under 38 C.F.R. § 4.114, Diagnostic Code 7346. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a 30 percent rating, but not higher, for pansinusitis for the period prior to August 7, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6510. 3. The criteria for a rating in excess of 50 percent for pansinusitis as of August 7, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.97, Diagnostic Code 6510. 4. The criteria for a rating in excess of 10 percent for hiatal hernia with GERD prior to August 7, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7346. 5. The criteria for a rating in excess of 60 percent for hiatal hernia with GERD as of August 7, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1979 to May 1999. The Veteran appeared at an August 2019 hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. Service Connection for a Recurrent Headache Disability The Veteran asserts that service connection for a headache disability is warranted as migraine headaches originated during active service as the result of a motor vehicle accident with closed head trauma and cervical spine injury. Service connection may be established for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The service medical records indicate that the Veteran was treated for headaches. A January 1985 treatment entry shows that the Veteran complained of frontal headaches. The diagnosis was sinusitis. Clinical documentation dated in November 1985 states that the Veteran was injured in a motor vehicle accident and sustained a closed head injury and a cervical spine injury. He struck his head on a rear windshield and lost consciousness. A November 1985 treatment record shows that the Veteran reported experiencing "asymptomatic headaches." Treating medical personnel diagnosed "status post neck strain." A May 1987 treatment record states that the Veteran complained of headaches of three days' duration. The Veteran was diagnosed with chronic sinusitis. A March 1991 treatment record notes that the Veteran complained of headaches and sinus problems. A December 2002 Department of Veterans Affairs (VA) treatment record states that the Veteran complained of severe headaches. A December 2003 VA treatment record shows that the Veteran complained of sinus problems and severe headaches. He was diagnosed with both chronic sinusitis and chronic headaches. A December 2004 VA treatment record states that the Veteran was seen for chronic sinusitis and tension headaches. A December 2005 VA treatment record states that the Veteran presented a history of headaches. The Veteran was diagnosed with migraine headaches. The report of a March 2011 VA headache examination states that the Veteran presented a history of recurrent headaches. He was diagnosed with migraine headaches. The examiner concluded that "the condition/disability migraine headaches is not caused by or a result of continuation of headache in military service 1985." The examiner commented that "there is no evidence that he had migraine headaches or chronic headaches in military service;" "isolated headache mentioned and military service record 1985 appeared to be secondary to wearing neck collar and was not a migraine or similar type headache and did not appear to be part of a chronic headache syndrome;" and "one other isolated headache noted in military service not a migraine." The examiner did not note or otherwise discuss the documented closed head trauma and associated headaches in service. Because of that deficiency, the Board of Veterans' Appeals (Board) finds that the examination report is of limited probative value. In a February 2015 informal claim for service connection, the Veteran asserted that he had initially manifested recurrent headaches during active service and has experienced migraine headaches, sinus headaches, and neck pain headaches three to four times a week since active service. The report of a March 2015 headache examination from N. Frye, FNP-C, states that the Veteran was diagnosed with migraine headaches secondary to sinusitis and cervical spine degenerative disc disease. The report of a February 2020 headache examination conducted for VA states that the Veteran presented a history of headaches since the 1985 motor vehicle accident in service. The Veteran was diagnosed with "migraine including migraine variants." The examiner concluded that "the claimed condition (headaches including migraines) was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in service illness (sinusitis)." The examiner commented that "they are the same headaches;" "a nexus has been established;" and "the headaches were not present before service and are likely the same headaches as those identified as sinusitis when Veteran was in service." The service medical records indicate that the Veteran sustained a closed head trauma and cervical spine injury in a November 1985 motor vehicle accident in service and thereafter experienced recurrent headaches. VA and private examination and treatment records have diagnosed the Veteran with migraine headaches related to the documented headaches in service. Therefore, the Board finds that service connection for migraine headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pansinusitis Chronic pansinusitis is to be rated under the General Rating Formula for Sinusitis. Sinusitis detected by X-ray study only warrants a 0 percent rating. A 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment or three to six non incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is warranted following radical surgery with chronic osteomyelitis; or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis is one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6510. Where there is a question as to which of two disability 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. Period Prior to August 7, 2019 Private clinical documentation dated between February 2014 and January 2015 shows that the Veteran was repeatedly seen for sinusitis. A February 2014 treatment record shows that the Veteran reported experiencing sinus headaches, sinus pressure, discolored nasal discharge, and a productive cough. On examination, the Veteran exhibited purulent nasal discharge and was diagnosed with acute maxillary sinusitis. He was prescribed Clarithromycin, an antibiotic. An October 2014 treatment record shows that the Veteran complained of sinus drainage, a cough, a sore throat, facial pain, and a headache. On examination, the Veteran exhibited a purulent runny nose and possible maxillary edema and tenderness. He was diagnosed with acute maxillary sinusitis. He was prescribed Levofloxacin, an antibiotic, and Prednisone. A January 2015 treatment record states that the Veteran complained of sinus drainage, pressure, pain, and headaches. On examination, the Veteran exhibited a purulent runny nose and possible maxillary pain and tenderness. He was diagnosed with acute maxillary sinusitis. He was prescribed Levofloxacin, an antibiotic, and Prednisone. A February 2015 private sinus evaluation from states that the Veteran had daily nasal congestion and headache; five non incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months; and no incapacitating episodes of sinusitis. On examination, the Veteran exhibited purulent drainage; maxillary sinus tenderness; and permanent hypertrophy of the nasal turbinates. He was diagnosed with chronic sinusitis necessitating treatment three to four times a year. A February 2015 written statement from the Veteran's wife states that the service-connected sinusitis had increased in severity and necessitated that the Veteran see a physician three to four times a year and be prescribed medication. In a February 2015 claim, the Veteran stated that: "I have had to see my doctor and get prescription medication 3-4 times over the last 12 months to clear up sinus infections;" "I now take sinus medications daily to prevent daily flair ups;" and "when I get a sinus infection, it affects my work performance by preventing me from doing assigned tasks." A March 2015 private sinus computerized tomography study report found that the Veteran exhibited acute and chronic rhinosinusitis involving all paranasal sinuses. The report of a July 2015 VA sinus examination states that the Veteran had one non incapacitating episode and no incapacitating episode of sinusitis over the past 12 months. The examiner commented that the service-connected pansinusitis did not impact the Veteran's ability to work. Prior to August 7, 2019, the service connected pansinusitis was shown to be manifested by multiple non incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge and requiring prescribed antibiotic medication. That symptoms merit assignment of at least a 30 percent rating for pansinusitis under the General Rating Formula for Sinusitis. The Veteran does not allege, and the record does not establish, that he experienced any incapacitating episodes of sinusitis or underwent sinus surgery during the relevant time period. The Board therefore finds that a 30 percent rating and no higher is warranted for pansinusitis prior to August 7, 2019. 38 C.F.R. § 4.97, Diagnostic Code 6510. Period on and August 7, 2019 In July 2020, the Agency of Original Jurisdiction increased the rating for pansinusitis to 50 percent, effective August 7, 2019, the date of the Board hearing. The 50 percent rating is the maximum schedular rating for pansinusitis. The Veteran has not expressed disagreement with assignment of the maximum rating. Accordingly, entitlement to a rating in excess of 50 percent for pansinusitis as of August 7, 2019, is denied. Hiatal Hernia with Gastroesophageal Reflux Disease A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent rating which are of lesser severity than is required for a 30 percent rating. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain which is productive of considerable impairment of health. A 60 percent rating requires 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. Period Prior to August 7, 2019 A June 2015 VA treatment record shows that the service-connected gastroesophageal reflux disease was well-controlled with current medication. The report of an August 2015 VA esophageal examination states that the Veteran complained of substernal pain. The Veteran attributed the esophageal symptoms principally to the service-connected esophageal stricture and associated dysphagia. The Veteran was diagnosed with gastroesophageal reflux disease. Prior to August 7, 2019, the service connected hiatal hernia with gastroesophageal reflux disease, alone, was shown to be manifested by no more than substernal pain and to be well-controlled by prescribed medication. The service-connected hiatal hernia and GERD symptoms were shown to be relatively minimal in nature. The Veteran was not shown to have epigastric distress with pyrosis and regurgitation during the relevant time period. In the absence of those symptoms, the Board finds that a rating in excess of 10 percent for hiatal hernia with GERD prior to August 7, 2019, is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346. Period on and August 7, 2019 In July 2020, the Agency of Original Jurisdiction increased the rating for hiatal hernia with gastroesophageal reflux disease to 60 percent, effective August 7, 2019, the date of the Board hearing. The 60 percent rating is the maximum schedular rating for hiatal hernia with gastroesophageal reflux disease. The Veteran has not expressed disagreement with assignment of the maximum rating. Accordingly, entitlement to a rating in excess of 60 percent for hiatal hernia with gastroesophageal reflux disease as of August 7, 2019, is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to August 7, 2019, and in excess of 30 percent as of August 7, 2019, for cervical spine intervertebral disc syndrome and a rating in excess of 10 percent prior to August 7, 2019, and in excess of 40 percent as of August 7, 2019, for right carpal tunnel syndrome with right upper extremity radiculopathy is remanded. The report of a February 2020 spine examination conducted for VA states that the Veteran exhibited a cervical spine range of motion of forward flexion to 20 degrees with pain, extension to 15 degrees with pain, lateral flexion to 10 degrees, bilaterally, and lateral rotation to 15 degrees, bilaterally, and intervertebral disc syndrome. The examiner commented that the cervical spine pain caused functional loss; the cervical spine limitation of motion was productive of functional loss including making it difficult to merge in traffic while driving; requiring the Veteran to turn his whole body to look at people, and making it hard to find items on high shelves; and "passive range of motion testing was not performed as it was not medically appropriate because not appropriate to cause neck pain." The nurse practitioner did not indicate the degree at which the Veteran experienced pain on motion of the cervical spine. Because of that deficiency, the Board finds that the functional loss associated with the service-connected cervical spine disability is unclear and the examination report is of limited probative value. The Board observes that the Secretary of VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 addressing degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome and intervertebral disc syndrome were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the February 2020 VA cervical spine examination and the recent amendment of the relevant diagnostic codes, the Board finds that further VA cervical spine evaluation is needed. Because of the overlapping nature of cervical intervertebral disc syndrome and right upper extremity radiculopathy, the issue of increased ratings for right carpal tunnel syndrome with right upper extremity radiculopathy must also be remanded. Clinical documentation dated after July 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to a compensable rating prior to August 7, 2019, and in excess of 30 percent as of August 7, 2019, for esophageal stricture is remanded. A November 2019 VA gastroenterology note states that the Veteran went to the Novant Health Clemmons Medical Center's emergency department for an episode of solid food dysphagia "several weeks ago." Clinical documentation of the cited private treatment is not of record. 3. Entitlement to TDIU is remanded. TDIU may be assigned where the combined schedular rating for the service connected disabilities is less than 100 percent when it is found that the service connected disabilities are sufficient to make a veteran unemployable without regard to either advancing age or the presence of any nonservice connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board observes that the Agency of Original Jurisdiction established a 100 percent combined rating for the service-connected disabilities, effective August 7, 2019. Assignment of a 100 percent schedular rating does not automatically make a TDIU claim moot. Bradley v. Peake, 22 Vet. App. 280 (2008) (there could be a situation where a veteran has a schedular total rating for a particular service-connected disability and could establish a TDIU rating for another service connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114(s)). Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. As the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, including Novant Health Clemons Medical Center, who treated him for the service-connected cervical spine, right upper extremity neurological, and esophageal stricture disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Associate with the record any VA medical records for treatment provided since July 2020 not already of record. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the current nature and severity of the service connected cervical spine disability and right carpal tunnel syndrome with right upper extremity radiculopathy. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the cervical spine for weight-bearing and nonweight-bearing. The examiner should indicate the degree of cervical spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of cervical spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate to what extent the Veteran experiences functional loss of the cervical spine due to pain or any other symptoms during flare ups or with repeated use. (c) State whether or not there is any ankylosis of the spine or any segment of the spine. (d) Note any incapacitating episodes associated with the cervical spine disability and the duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (e) Describe any identified right or left upper extremity neurologic disabilities caused by the service-connected cervical spine disability and right carpal tunnel syndrome, the nerves affected, and the level of impairment. (f) Opine as to the impact of the service connected cervical spine and right upper extremity neurological disabilities on the Veteran's vocational pursuits. (g) Opine whether the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities prior to August 7, 2019. If the Veteran was felt capable of work prior to August 7, 2019, the examiner should state what type of work and what accommodations would have been necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Hutcheson, 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.