Citation Nr: 21040464 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-06 221A DATE: July 3, 2021 ORDER Throughout the rating period on appeal, a 50 percent rating, the highest schedular rating, for headaches is granted. REMANDED Entitlement to service connection for osteoporosis, including as secondary to hypothyroidism and/or service-connected residuals of an electrical injury, including fibromyalgia, is remanded. Entitlement to service connection for hypertension, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia, is remanded. Entitlement to service connection for diverticulosis, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia and/or headaches, to include prescribed medications, is remanded. Entitlement to service connection for an esophageal disability, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia and/or headaches, to include prescribed medications, is remanded. Entitlement to service connection for hypothyroidism, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia, is remanded. Entitlement to an initial compensable rating for dry eye syndrome is remanded. Entitlement to a rating in excess of 40 percent for residuals of an electrical injury, including fibromyalgia with history of electric shock right upper extremity and neck, generalized myofascial syndrome, and history of causalgia is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the rating period on appeal, the Veteran's headaches have been manifested by frequent prostrating attacks of headache pain impacting employment. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a 50 percent rating for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1990 to April 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from July and August 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Historically, the Veteran was granted service connection for residuals of electrical shock injury to her right hand with generalized myofascial pain syndrome upper extremity and neck with headaches and history of causalgia (also claimed as fibromyalgia) in an August 1995 rating decision. In January 2017, the Veteran filed a claim for an electrical injury. In an August 2017 rating decision, the RO continued a 40 percent rating for fibromyalgia with history of electrical shock right upper extremity and neck, generalized myofascial pain syndrome, and history of causalgia. Given the procedural history, the Board has recharacterized the claim to entitlement to service connection for residuals of an electrical injury, including fibromyalgia with history of electric shock right upper extremity and neck, generalized myofascial syndrome, and history of causalgia. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2020. A copy of the transcript has been reviewed and associated with the claims file. The Board notes that prior to this hearing, the Veteran attempted to opt-in to the Appeals Modernization Act (AMA) by submitting a VA Form 10182 in March 2019. However, the Board subsequently rejected the attempted AMA opt-in and informed the Veteran in an October 2020 letter that it would be proceeding with the adjudication of the issues in the legacy system. (It is noted that the letter provided erroneous information as to the basis for rejection. For clarification, the Board notes that the statement of the case to which the Veteran's Form 10182 responded was issued before February 19, 2019, and thus was not eligible for opt-in to AMA.) Accordingly, the Board will proceed with the adjudication of these claims in the legacy system. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, a March 2017 VA examination indicated that the Veteran's service-connected headache disability impacted her ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.") Entitlement to a rating in excess of 30 percent for headaches 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 (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991). Although the Veteran's entire history is reviewed when assigning a disability rating pursuant to 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, in a July 2017 rating decision, the RO assigned a separate 30 percent rating for headaches, effective February 22, 2016, pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 30 percent disability rating is assigned for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board observes that the rating criteria does not define "prostrating." Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). Similarly, the rating criteria also does not define "severe economic inadaptability." However, the Court has indicated that, while there need not be a showing of unemployability, at a minimum, there should be an indication that the headaches are capable of interfering with the ability to earn money from work. Pierce v. Principi, 18 Vet. App. 440 (2004). Turning to the evidence of record, the Veteran underwent a VA examination in March 2017, at which time she reported having migraine headaches that occur approximately three to four times per month and last one to two days. She was currently taking Promethazine. Her headache symptoms manifested in pain, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The examiner indicated that she had characteristic prostrating attacks of migraine and non-migraine headache pain that occurred once every month. The examiner noted that she did not have very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe inadaptability. However, the examiner found that her headache disability impacted her ability to work and that during the time she was having a headache she was unlikely to do anything more than sedentary work not involving any significant concentration skills. The Veteran testified at the hearing in May 2020 and indicated that she has migraine headaches at least once a week that require her to lie down. Due to her severe headaches, she had to stop working. Applying the facts in this case to the criteria set forth under Diagnostic Code 8100, the Board finds that a 50 percent rating, the maximum schedular rating, is warranted throughout the rating period on appeal, or from February 2016. In this regard, the March 2017 VA examiner concluded that the Veteran suffered from prostrating attacks of migraine and non-migraine headache pain. The examiner also noted that her headache disability impacted her ability to work and during a headache she was only able to perform sedentary work that did not require concentrations kills. Moreover, the Veteran testified at the hearing and indicated that she has suffered from migraine headaches at least once a week that required her to lie down. Due to the severity of her headaches, she had to stop working. Thus, the Board finds that the Veteran suffered from very frequent completely prostrating and prolonged headache attacks and her headaches are capable of interfering with the ability to earn money from work. See Pierce, 18 Vet. App. 440. In light of the medical evidence and lay testimony, the Board finds that the Veteran's overall headache disability is indicative of very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the rating period on appeal. Affording the Veteran the benefit of the doubt, the maximum 50 percent disability rating for headaches is awarded. REASONS FOR REMAND 1. Entitlement to service connection for osteoporosis, including as secondary to hypothyroidism and/or service-connected residuals of an electrical injury, including fibromyalgia is remanded; 2. Entitlement to service connection for hypertension, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia is remanded; 3. Entitlement to service connection for diverticulosis, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia and/or headaches, including prescribed medications is remanded; 4. Entitlement to service connection for an esophageal disability, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia and/or headaches, including prescribed medications is remanded; 5. Entitlement to service connection for hypothyroidism, including as secondary to service-connected residuals of an electrical injury, including fibromyalgia is remanded. Throughout the rating period on appeal, the Veteran has been assessed with osteopenia, hypothyroidism, hypertension, diverticulosis, and gastroesophageal reflux disease (GERD) and asserts they are secondary to her service-connected residuals of an electrical injury, including fibromyalgia. Moreover, the Veteran asserts that her GERD and diverticulosis are secondary to the prescribed medications for her service-connected fibromyalgia and headache disabilities. Lastly, she asserts that her osteopenia or osteoporosis is secondary to her hypothyroidism. Given that the Veteran has present disabilities that may be related to her service-connected disabilities, the Board finds that VA examinations are warranted on remand to determine the nature and etiology of her osteopenia, hypothyroidism, hypertension, diverticulosis, and esophageal disability, including GERD. 6. Entitlement to an initial compensable rating for dry eye syndrome is remanded. The Veteran's VA treatment records dated in June 2017 reveal that she was advised to undergo a tear duct surgery by her private ophthalmologist. Moreover, she testified at the hearing in May 2020 and indicated that a private ophthalmologist recommended surgery for correction and infection. Accordingly, the Board finds that a remand is warranted in order for the RO to obtain these private treatment records. Moreover, as the last examination was 4 years ago and the record suggests a worsening of the disorder, another examination should be arranged. 7. Entitlement to a rating in excess of 40 percent for residuals of an electrical injury, including fibromyalgia with history of electric shock right upper extremity and neck, generalized myofascial syndrome, and history of causalgia is remanded. As set forth above, the Veteran is service connected for residuals of an electrical injury, including fibromyalgia, generalized myofascial syndrome, and causalgia. A VA examination was performed in July 2017, at which time the examiner indicated that her fibromyalgia symptoms included widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, paresthesias, and anxiety. The Veteran testified at the hearing in May 2020 and indicated that she suffers additional residuals from the electrical injury, including nerve pain and lower back pain. Moreover, she submitted an opinion by T.E., Ph.D., dated in June 2020, who concluded she suffered from memory impairment, neurocognitive disorder, depressive disorder, and somatic symptom disorder as a result of electrocution. Accordingly, the Board finds that the Veteran should be afforded a VA examination to assess the severity of all residuals of her service-connected electrical injury, including her nerve pain, back disability, psychiatric disability, and cognitive disability. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In the present case, in March 2017 and July 2017 VA examinations, the examiners noted that the Veteran's headache disability and fibromyalgia disability impacted her ability to work. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from January 2019 to the present. 2. Ask the Veteran to identify any relevant private treatment, including her private ophthalmologist, and furnish the appropriate release(s) for the medical records. If she fails to furnish the necessary release(s), she should be advised to obtain the records and submit them to the VA. 3. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of her osteopenia, hypothyroidism, hypertension, diverticulosis, and esophageal disability, including gastroesophageal reflux disease (GERD). The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's osteopenia, hypothyroidism, hypertension, diverticulosis, and/or esophageal disability had their onset in and/or are otherwise related to her period of active service, including the December 1993 electrical injury? B. If not directly related, is it at least as likely as not (probability of at least 50 percent) that the Veteran's osteopenia, hypothyroidism, hypertension, diverticulosis, and/or esophageal disability have been caused by her service-connected fibromyalgia and/or headache disability, including prescribed medications in and post-service? If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's osteopenia, hypothyroidism, hypertension, diverticulosis, and/or esophageal disability have been aggravated (any incremental increase in disability) as a result of her service-connected fibromyalgia and/or headache disability, including prescribed medications in and post-service? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and osteopenia, hypothyroidism, hypertension, diverticulosis, and/or esophageal disability that shows a baseline of these disabilities prior to aggravation? If so, please identify. C. If service connection is warranted for hypothyroidism, the examiner should provide an opinion as to whether is it at least as likely as not (probability of at least 50 percent) that the Veteran's osteoporosis or osteopenia was caused by her hypothyroidism. If not, is it at least as likely as not (probability of at least 50 percent) that the Veteran's osteoporosis or osteopenia was aggravated (any incremental increase in disability) by her hypothyroidism? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and osteopenia or osteoporosis disability that shows a baseline of such disability prior to aggravation? If so, please identify. D. If service connection is warranted for any disability, describe the impact, if any, on her ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran's hearing testimony, statements contained in the record, and medical treatises. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to assess the severity of her service-connected dry eye syndrome, including any residuals thereof. The claims file, including a copy of this remand, should be reviewed and such review should be noted in the examination report. The examiner should discuss whether the Veteran has any active objective findings such as mucous secretions, etc. or whether there are any residuals such as visual impairment and disfigurement. See 38 C.F.R. § 4.79. Describe the impact, if any, of her service-connected eye disability on her ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran's hearing testimony, statements contained in the record, and medical treatises. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 5. After completion of #1 and #2, schedule the Veteran for a VA examination to assess the severity of her service-connected residuals of an electrical injury, including whether her residuals include nerve pain, back disability, psychiatric disability, and cognitive disability. All residuals deemed related to the initial service-connected electrical injury should receive separate VA examinations and be assessed for the severity of each disability. Describe the impact, if any, of any residuals of an electrical injury on her ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the Veteran's hearing testimony, statements contained in the record, and medical treatises. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 6. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide her with a VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that she supply the requisite information. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.