Citation Nr: A24029739 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 200107-59251 DATE: June 6, 2024 ORDER Entitlement to an initial disability rating of 30 percent, but not higher, for service-connected gastroesophageal reflux disease (GERD) is granted. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for chronic fatigue is remanded. FINDINGS OF FACT 1. The Veteran's GERD is manifested by persistent recurrent epigastric distress, pyrosis, reflux, vomiting, and sleep disturbance. 2. The Veteran's headaches were caused or aggravated by his service-connected tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.119, DC 7206, 7346. 2. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1997 to August 2001; from October 2003 to March 2005; and from December 2007 to February 2009; and in the Army National Guard from February 2009 to July 2018. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2019 rating decision that denied entitlement to service connection for chronic fatigue and a June 2019 rating decision that granted entitlement to service connection for GERD and assigned a noncompensable rating effective July 10, 2018, and denied entitlement to service connection for migraine headaches. In the January 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on January 10, 2024. A hearing of the transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the May 2019 agency of original jurisdiction (AOJ) decision on appeal with respect to chronic fatigue and the June 2019 AOJ decision with respect to migraines and GERD, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for chronic fatigue, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, 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. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial disability rating of 30 percent, but not higher, for service-connected gastroesophageal reflux disease (GERD) is granted. The Veteran requests a higher rating for his GERD disability, which is currently rated as noncompensable under DC 7399-7346. During his January 2024 hearing, the Veteran testified that he has been on various medications, including over-the-counter medications, to try to control his GERD symptoms. He testified that his symptoms, including vomiting and pain that radiates across his shoulder bone towards the left shoulder, would wake him up at night. See January 2024 hearing transcript. The Veteran's GERD is rated by analogy to 38 C.F.R. § 4.114, DC 7346, for hiatal hernia. During the pendency of the appeal, VA published amendments to 38 C.F.R. § 4.114, the Schedule of Ratings for the Digestive System, effective May 19, 2024. Prior to this date, GERD was rated analogous to hiatal hernia under DC 7346. Under the amended criteria, a new diagnostic code (DC 7206) was added for GERD, which provides the same rating criteria as DC 7203 for stricture of the esophagus. Prior to May 19, 2024, pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. Under the new DC 7206 for GERD, a noncompensable evaluation is assigned for documented history without daily symptoms or requirement for daily medications. A 10 percent rating is assigned for documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic. A 30 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation 3 or more times per year, (2) dilatation using steroids at least one time per year, or (3) esophageal stent placement: 50 documented histories of recurrent or refractory esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year. A maximum 80 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube). The Veteran was afforded a VA Esophageal Conditions examination in October 2018. Based on an in-person examination and review of the Veteran's VA e-folder, CPRS, and the Veteran's statements, the VA examiner reported a diagnosis of GERD. The examiner reported that the Veteran's treatment plan includes taking continuous medication, omeprazole, for the condition. The examiner reported that the Veteran has pyrosis due to his GERD, but that he does not have an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. No other pertinent physical findings were reported. The VA examiner reported that the Veteran's GERD did not impact his ability to work. See October 2018 VA examination report. A review of the Veteran's treatment records indicates that he has been on omeprazole, famotidine, pantoprazole, and Protonix. He has denied trouble swallowing or choking; his appetite is fair; and there is no recent weight loss. He has reported that he continues to have breakthrough symptoms of heartburn with nausea after meals. See January 2022 private treatment records. As discussed above, the Board acknowledges here that VA recently amended the Rating Schedule for evaluating digestive system disabilities effective May 19, 2024. See 89 Fed. Reg. 19375. The revised rating criteria apply to all claims received by VA or that are pending before the AOJ on or after May 19, 2024. As noted above, claims pending prior to the effective date will be considered under both the old and new rating criteria and the criteria which is more favorable to the Veteran's claim(s) will be applied. The Federal Circuit has held that the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma, 341 F.3d at 1327. The Board is not precluded from applying the prior version of an applicable regulation to the period on or after the effective date of the new regulations if the prior version was in effect during the pendency of the claim(s) (as in this appeal). Here, the Board finds that the old rating criteria is more favorable to the Veteran's claim. As there is competent evidence of recurrent epigastric distress, pyrosis, and reflux, with vomiting and sleep disturbance, the evidence is at least evenly balanced as to whether his symptoms more nearly approximate the criteria for a 30 percent rating under DC 7346. However, the Board finds that the probative evidence of record, including the VA examination, does not support a finding that the Veteran's GERD produces symptoms of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The revised rating criteria also provide a new DC 7206 for GERD which provides disability ratings greater than 30 percent with a documented history of recurrent or refractory esophageal stricture. The record evidence does not show - and the Veteran does not contend - that he has a documented history of esophageal stricture (whether recurrent or refractory) such that an initial rating greater than 30 percent is warranted for the service-connected GERD under either the revised DC 7346 for a hiatal hernia or the new DC 7206 for GERD. See 38 C.F.R. §§ 4.114, DCs 7206 and 7346 (effective May 19, 2024). The Veteran and his service representative otherwise have not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent for his service-connected GERD. For the reasons discussed above, the Board finds that an initial rating of 30 percent disabling, but no higher, is warranted for the Veteran's service-connected GERD. To this extent, the appeal is hereby GRANTED. Service Connection Direct service connection is established when there is a nexus between a current disability and an injury or disease incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Direct service connection can also be established for a disease diagnosed after separation if incurred during service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). To prevail on the theory of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See 38 C.F.R. § 3.310; Reiber v. Brown, 7 Vet. App. 513, 51617 (1995). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for migraine headaches is granted. The Veteran seeks service connection for his migraine headaches. See August 2018 VA Form 21-526EZ. Initially, the Board notes that, in the June 2019 rating decision, the AOJ found that the current headaches examination shows that the Veteran has common headaches. The Board is bound by this favorable finding. In connection with his claim, the Veteran was afforded a VA Headaches examination in October 2018. Based on an in-person examination and review of the Veteran's VA e-folder, CPRS, and the Veteran's statements and exam, the VA examiner reported a diagnosis of common headache. The examiner noted the Veteran's report that he was having headaches and went to the doctor because they were getting worse. The examiner reported that the Veteran's headache condition did not impact his ability to work. As a result of the examination, the VA examiner opined that the Veteran's headache condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. The examiner explained that the evidence of record supports no "Complaints and Treatment during service" of headaches and that, therefore, after reviewing the c-file, VA e-folder, and all pertinent records, it is their opinion that the Veteran has no diagnosis of 'headaches migraines' that is at least as likely as not incurred in or caused by '(the) Complaints & Treatment during service.' See October 2018 and May 2019 VA examination reports. The Board notes that the opinion offered is noted to be one for secondary service connection, yet the opinion itself does not address a service-connected condition to which the Veteran's headache condition could be secondary. The Board finds the opinion to be inadequate and of little probative value. See Nieves-Rodriguez, 22 Vet. App. at 295, 304 (the probative value of a medical opinion comes from its reasoning). In support of his claim, the Veteran submitted a private opinion provided by R.P., DO, in March 2024. Dr. P. stated that, as per the Veteran's medical history, he is suffering from migraine headaches. Migraine is a complex disorder characterized by episodes of moderate to severe headache, most often unilateral and generally associated with nausea and light or sound sensitivity. The symptoms of migraine include premonitory symptoms (yawning, mood changes, difficulty concentrating, fatigue, thirst, etc.), aura (visual), headache (unilateral, worsening with head movement, aversion to touch, light, sound, and smell), and postdrome (tiredness, drowsiness, etc.). Dr. P. explained that the common risk factors associated with migraine are age, female sex, low educational status, depression, obesity, ineffective acute treatment, medication overuse, etc. Dr. P. further explained that chronic migraine has a negative impact on quality of life, predominantly in patients with more frequent attacks and those who are not using any preventive medication. Dr. P. explained that relevant to the discussion, migraine and tinnitus are associated; Langguthe et. al., aimed to investigate whether tinnitus and headaches are pathophysiologically linked; they have analyzed the database of 193 patients with tinnitus and headaches; and the results showed that 44.6 percent suffered from migraine, 13 percent from tension-type headache, and 5.7 percent from both. Dr. P. explained that headache laterality was significantly related to tinnitus laterality and in the majority of patients, fluctuations in the symptom severity of tinnitus and headache were interrelated. Dr. P. explained that another study aimed to evaluate the association between tinnitus and headaches; they have enrolled 660 participants with tinnitus and 1870 participants without tinnitus; and the results showed that the prevalence of headaches was 26 percent in participants with tinnitus and reached 40 percent in subjects with severe tinnitus. He noted that many other studies have reported similar results. Dr. P. further explained that one cross-sectional study aimed to investigate the independent association between migraine and tinnitus; they used de-identified data from the National Health and Nutrition Examination Survey database; the study included 12,962 subjects in total; the study found a migraine prevalence of 35.6 percent in tinnitus patients; and that this study suggests an independent link between migraine and tinnitus. Dr. P. stated that, according to the Veteran's medical records, he has been having intermittent migraine headaches and that, based on the above evidence, the Veteran's migraine is at least as likely as not secondary to his service-connected tinnitus. See March 2024 private treatment records. As to the theory of secondary service connection, the Board finds that service connection is warranted, as the evidence is at least in relative equipoise. The issue before the Board for secondary service connection is whether the Veteran's migraines were caused or aggravated by his service-connected tinnitus. In this regard, the March 2024 private provider reviewed the Veteran's claim, diagnosis of migraines, and medical literature. The private provider provided an opinion supported by the record opining that the Veteran's migraines were secondary to his service-connected tinnitus. The record does not contain a medical opinion to the contrary as to secondary service connection. As service connection for the Veteran's migraine headaches is being granted on a secondary basis, there is no need to further discuss or consider the theory of direct service connection. In sum, the Board resolves reasonable doubt in the Veteran's favor. Therefore, the Board finds that service connection for migraines secondary to the Veteran's service-connected tinnitus is warranted. Accordingly, the claim is hereby GRANTED. REASONS FOR REMAND Under the AMA, remands are limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). For the reasons discussed below, the Board finds that remand is required to correct a duty to assist error that occurred prior to the issuance of the rating decision on appeal. Specifically, remand is required in order to afford the Veteran an adequate VA examination. 3. Entitlement to service connection for chronic fatigue is remanded. The Veteran contends that service connection is warranted for chronic fatigue. See August 2018 VA Form 21-526EZ. Initially, the Board acknowledges that, in the May 2019 rating decision, the AOJ found that evidence shows that the Veteran performed service in Southwest Asia, as the service personnel records confirm service in Iraq. The Board is bound by this favorable finding. In connection with his claim for service connection, the Veteran was afforded a VA Gulf War General Medical and Chronic Fatigue Syndrome examinations in October 2018. Based on an in-person examination and review of the Veteran's VA e-folder, CPRS, and the Veteran's statements and exam, the VA examiner reported that the Veteran did not now have, nor has he ever been diagnosed with, chronic fatigue syndrome. The examiner noted that the Veteran has never been diagnosed or treated for chronic fatigue syndrome, and that he states that his regular doctor had him on testosterone for fatigue. The examiner further reported that, from the conditions identified and for which Questionnaires were completed, there are no diagnosed illnesses for which no etiology was established, and that the Veteran does not report any additional signs and/or symptoms not addressed through completion of DBQs identified in the above sections. The examiner remarked that the Veteran's disability patterns are not an undiagnosed condition, a medically unexplainable chronic multi-symptom illness of unknown etiology, or a chronic multi-symptom illness with a partially explained etiology; they have a clear and specific etiology and diagnosis; and that the diagnosed conditions are less likely as not to have a correlation to any exposures to any substances or agents. See October 2018 VA examination reports. A review of the record reveals that the Veteran has regularly complained of fatigue, including extreme fatigue with no apparent cause; that he has been assessed with fatigue and testosterone deficiency; and that he has been treated for testosterone deficiency with injections, which has not resolved the fatigue. See February 2015, November 2015, August 2016, June 2017, November 2017, and February 2018 private treatment records. In March 2015, April 2015 and May 2015, private treatment records indicate that testosterone deficiency is noted, and no associated symptoms are reported; during these same visits, the reviews of symptoms were positive for fatigue. The record also includes an April 2019 VA treatment note which references the Veteran's complaints of fatigue. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that an opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, it appears that the October 2018 VA examination report, and the associated finding that the Veteran does not have a diagnosis of chronic fatigue syndrome, is based on an incomplete - and therefore inaccurate - factual premise. Specifically, VA records pertaining to treatment after the VA examination, and before the rating decision was issued, were not considered at the time of the VA examination. Further, despite the conclusion that the Veteran's fatigue is considered only a symptom, as discussed above, the Veteran's private treatment records do not consistently identify the Veteran's fatigue as a symptom of his testosterone deficiency. For these reasons, medical questions remain unanswered regarding an explanation for the Veteran's ongoing and chronic fatigue. As the examination and opinion are based upon an inaccurate factual premise and do not appear to have considered all evidence of record, the Board finds the examination and opinion are inadequate to adjudicate the claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Under the circumstances, the AOJ should have obtained an adequate an VA examination and opinion to adequately address unresolved medical questions before adjudicating the Veteran's claim. Given the facts noted above, the AOJ's failure to obtain a new examination was a pre-decisional duty to assist error that must be corrected. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his chronic fatigue disability. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: a) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). b) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. c) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. d) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. e) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. f) If both the etiology and pathophysiology are partially understood or fully understood, then is the evidence at least as likely as not (evenly or approximately balanced) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete medical rationale for all opinions expressed must be provided. J.P. Norman Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, Associate 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.