Citation Nr: 1609534	
Decision Date: 03/09/16    Archive Date: 03/15/16

DOCKET NO.  13-28 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Saint Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased evaluation for duodenal ulcer disease with partial gastrectomy, gastroesophageal reflux disease (GERD), and esophageal hernia (collectively referred to herein as "gastric disability"), currently rated as 40 percent disabling prior to June 24, 2015, and 60 percent disabling as of that date.

2.  Entitlement to an increased evaluation of a right ankle disability, currently rated as 10 percent disabling.

3.  Entitlement to an increased evaluation of left ear hearing loss, currently rated as 0 percent disabling.
  
4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans
WITNESS AT HEARING ON APPEAL

Appellant and his son


ATTORNEY FOR THE BOARD

P. Wirth, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1943 to January 1946 and from April 1948 to November 1965.

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida.  

In the April 2011 rating decision, the RO denied entitlement to an increased rating for the Veteran's gastric disability evaluated as 40 percent disabling, increased the evaluation for the Veteran's right ankle disability to 10 percent effective May 17, 2010, denied entitlement to service connection for hemorrhoids and diverticulitis, and denied entitlement to a TDIU.  In August 2011, the Veteran filed a timely Notice of Disagreement (NOD) as to all of the issues in the April 2011 rating decision.  However, the June 2013 Statement of the Case (SOC) only addressed the increased rating issues and the TDIU issue.  The Veteran filed a timely Substantive Appeal (VA Form 9) in June 2013.   

In December 2014, the Veteran and his son testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been prepared and associated with the claims file.

In March 2015, the Board remanded the Veteran's claims for increased ratings of his service-connected gastric disability and right ankle disability for new VA examinations.  The Board remanded the Veteran's claims for entitlement to service connection for hemorrhoids and diverticulitis for the RO to issue SOCs in response to the timely August 2011 NOD.  The TDIU claim was also remanded, as it is inextricably intertwined with the Veteran's increased rating and service connection claims.  

In its March 2015 remand, the Board addressed one additional claim that was unrelated to the April 2011 rating decision on appeal.  In a March 2012 rating decision, the RO granted service connection separately for the Veteran's gastrectomy scar (which was previously evaluated with the Veteran's gastric disability) and assigned a noncompensable rating effective July 8, 1969, and a 10 percent disability rating effective August 8, 2011.  In an April 2012 statement, the Veteran disagreed with the effective date assigned for the gastrectomy scar.  The Board found that the April 2012 statement constituted a timely NOD with the March 2012 rating decision; however, the RO had not issued an SOC in response to the NOD.  Therefore, the Board remanded the Veteran's claim for the RO to issue a responsive SOC.

The RO issued a June 2015 SOC addressing the Veteran's claims relating to hemorrhoids, diverticulitis, and his scar.  The Veteran did not perfect an appeal of these issues.  

As the RO furnished an SOC addressing the Veteran's claims and adequate VA examinations were provided to the Veteran in June 2015, the Board finds compliance with its March 2015 remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

In a July 2015 rating decision, the RO increased the rating for the Veteran's service-connected gastric disability to 60 percent, effective June 24, 2015.  The Board notes that 60 percent is the highest schedular rating for the disability.  However, the claim for increase remains before the Board for the period on appeal prior to June 24, 2015 and for consideration on an extraschedular basis.  AB v. Brown, 6 Vet. App. 35 (1993).

Regarding the February 2015 rating decision on appeal, the RO continued the Veteran's noncompensable (0 percent) rating for his left ear hearing loss.  In March 2015, the Veteran filed an NOD, and the RO furnished the Veteran an SOC in June 2015.  In July 2015, the Veteran filed a Substantive Appeal (VA Form 9) and requested a Travel Board hearing.  In November 2015 statements, the Veteran withdrew his request for a Board hearing.  See November 2015 Statements in Support of Claim (VA Form 21-4138).  As there have been no further requests for a hearing, the Board deems the hearing request to be withdrawn.  See 38 C.F.R. § 20.704 (2015). 

With respect to the Veteran's claim for an increased rating of his scar, the Board notes that in August 2015 the Veteran resubmitted a copy of a September 2014 Statement in Support of Claim (VA Form 21-4138) in which he disagreed with the March 2012 rating decision.  Essentially, the Veteran contended that an evaluation in excess of 10 percent should have been granted from February 1969; although, the surgery was not performed until November 1969.  This statement was not timely for consideration as a substantive appeal in response to the June 2015 SOC.  The Veteran also has generally alleged that the 60 percent evaluation for his gastric disability should never have been decreased to 40 percent.  In addition, in a March 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), the Veteran requested an increased rating for his tinnitus and an effective date of December 1, 1965 for service connection.  However, VA regulations do not provide for freestanding claims requesting an earlier effective date.  

The Veteran should be advised that, if he wishes to challenge (1) the March 2012 rating decision pertaining to his scar, (2) the reduction of his gastric disability rating from 60 percent to 40 percent, or (3) the rating decision that granted service connection for tinnitus and the effective date established, he may do so on the basis of there being clear and unmistakable error in the applicable final decisions.  He must specifically allege which decision he is challenging and the error.  Such matters must be filed at the local RO.

In its March 2015 remand, the Board noted that the issue of entitlement to an increased evaluation for right inguinal hernia was raised in a July 2012 statement, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Veteran again raised the issue of an increased rating for his right inguinal hernia again in an August 2015 statement.  The AOJ still has not adjudicated this issue.  As such, the Board does not have jurisdiction over it, and it is referred to the AOJ for action deemed appropriate in accordance with the revised regulations concerning the filing of claims.  See 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  For the period on appeal prior to June 6, 2014, the evidence shows that the Veteran's gastric disability exhibited moderate symptoms of nausea after a meal several times a week, esophageal distress of moderate severity several times a week to weekly, vomiting occasionally to daily at times, watery/loose stools several times per week, difficulty swallowing solid foods, and sore throat, but no weight loss, malnutrition, anemia, hematemesis, or melena.

2.  As of June 6, 2014, resolving doubt in the Veteran's favor, the Veteran's gastric disability exhibited symptom combinations that were productive of severe impairment of health including persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux, episodes of nausea and vomiting, anemia, and at least temporary weight loss.    

3.  A separate rating for the Veteran's esophageal disability is not warranted, as there is no medical evidence of esophageal stricture.
4.  For the period on appeal prior to February 11, 2014, the evidence shows that the Veteran's right ankle disability exhibited moderate symptoms including pain and decreased mobility, but without limitation of motion, evidence of flare-ups or increased limitation of motion or functional loss with repetitive use, swelling, crepitus, or the need for assistive devices to ambulate.  

5.  As of February 11, 2014, the Veteran's right ankle disability manifests in marked limitation of motion, increased pain, evidence of flare-ups and increased limitation of motion or functional loss with repetitive use, swelling, crepitus, and the need for assistive devices to ambulate, but not ankylosis or malunion of the tibia or fibula.

6.  The Veteran's left ear hearing loss is no worse than Level III hearing loss.

7.  The Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU for the period prior to August 8, 2011.

8.  The competent and probative evidence does not show that referral on an extraschedular basis for a TDIU is warranted for the period prior to August 8, 2011.

9.  The evidence is in at least equipoise as to whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially-gainful occupation beginning on June 6, 2014.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 40 percent for duodenal ulcer, GERD, and esophageal hernia prior to June 6, 2014 have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7305, 7308 (2015).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for a disability rating of 60 percent for duodenal ulcer, GERD, and esophageal hernia beginning June 6, 2014 have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7305, 7308 (2015).

3.  The criteria for a disability rating in excess of 10 percent for right ankle disability prior to February 11, 2014 have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2015).

4.  The criteria for a disability rating of 20 percent for right ankle disability beginning February 11, 2014 have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2015).

5.  The criteria for a compensable disability rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2015). 

6.  The criteria for a TDIU have been met beginning on June 6, 2014.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


I.  VA'S DUTY TO NOTIFY AND ASSIST

Before addressing the merits of the Veteran's claims, the Board is required to ensure that VA has satisfied its duties to notify and assist the Veteran in substantiating his claims for VA benefits, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  

The notice requirements of the VCAA require VA to notify the claimant of what evidence is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and the evidence that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  The notice requirements apply to all five elements of a service connection claim:  veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/ Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific").  

In the present case, in a June 2010 letter issued prior to the April 2011 decision on appeal, the Veteran was advised with respect to his claim for a higher rating for his gastric disability that the evidence must show that his service-connected disabilities have gotten worse.  The letter further advised the Veteran of how effective dates are assigned, and the type of evidence that impacts those determinations.  The letter also explained the evidence and information that must be submitted to substantiate a claim for a TDIU.

The Veteran did not file a claim seeking an increased rating of his right ankle disability.  Rather, the RO initiated the claim as a result of the Veteran's TDIU claim.  The Veteran did not receive formal notice of the evidence necessary to substantiate his claim for an increased rating of his right ankle disability until October 2011.  Although the October 2011 letter was sent after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following provision of the required notice and completion of all indicated development of the record, the RO readjudicated the claim in May 2013 and July 2015.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (finding that timing error may be cured by new VCAA notification followed by readjudication of claim).

The Veteran's claim for an increased rating of his service-connected left ear hearing loss was filed as a fully developed claim pursuant to VA's program to expedite claims.  See February 2015 VA Form 21-526EZ.  The fully developed claim form includes notice to the Veteran of what evidence is required to substantiate a claim, as well as the Veteran's and VA's respective duties for obtaining evidence.  The notice also provides information on how VA assigns disability ratings.  The notice that is part of the claim form submitted by the Veteran satisfies the duty to notify.  Thus, the Board finds that VA's duty to notify has been fully met.

VA also has a duty to assist the claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service treatment records and pertinent post-service treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  VA must make reasonable efforts to assist a claimant in obtaining evidence, unless no reasonable possibility exists that such assistance will aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2015).
The record also reflects that VA has made efforts to assist the Veteran in the development of his claims.  VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA medical records, VA examination reports, private treatment records, letters from private providers, and the statements of the Veteran and his representative.  The Veteran has not identified any other outstanding records that have not been requested or obtained. 

The Veteran was provided with VA examinations in February 2011 and June 2015 to evaluate his gastric and right ankle disabilities, and in February 2015 and January 2016 to evaluate his left ear hearing loss.  The Board finds the examination reports to be adequate for rating purposes, as the examiner reviewed the Veteran's medical records and/or claims file, interviewed the Veteran, was informed of and documented the relevant facts regarding the Veteran's medical history and current status, conducted clinical examinations and audiometric testing, and described the current severity of the Veteran's disabilities in sufficient detail so that the Board's evaluation is an informed determination.  The opinions show that the examiners considered all relevant evidence of record, including the Veteran's statements.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

As previously noted, the Veteran and his son were provided an opportunity to set forth their contentions during a hearing before the undersigned VLJ in December 2014.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer explain the issues and suggest the submission of evidence that may have been overlooked.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or identified any prejudice in the conduct of the hearing.  The hearing focused on the evidence necessary to substantiate the Veteran's claims and the Veteran, through his testimony, demonstrated that he had either actual knowledge of the evidence necessary to substantiate his claims, or that a reasonable person could be expected to understand from the notice what was needed.  The Veteran testified to the severity and duration of his symptoms.  The VLJ asked relevant questions to draw out the evidence necessary to substantiate the Veteran's claims and the submission of additional evidence was discussed.  The record was left open for 60 days to receive that evidence.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.

As discussed above, the Board has carefully considered VA's duties to notify and assist, and finds that they have been met.  The Veteran has been provided with a meaningful opportunity to participate in the claims process and has been an active participant in it by providing evidence and testifying at hearing.  Moreover, neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claims; the Board also is unaware of any such evidence.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  INCREASED RATINGS

A.  General Relevant Law

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  See 38 C.F.R. Part 4 (2015).  Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Rating Schedule, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015).  

Individual disabilities are assigned separate diagnostic codes.  38 C.F.R. § 4.27 (2015).  When a question arises as to which of two disability evaluations applies under a particular diagnostic code, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2015).  In addition,  consideration must be given to increased evaluations under other potentially applicable diagnostic codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Functional impairment is to be evaluated on the basis of lack of usefulness, and the effects of the disability upon the veteran's ordinary activities and conditions of daily life, including employment.  38 C.F.R. § 4.10 (2015); see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  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.  Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2015).  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, 262 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015).

B.  Gastric Disability

Rating Criteria

By way of background, the Veteran was granted entitlement to service connection for duodenal ulcer disease in December 1965 and was assigned a 20 percent disability rating pursuant to Diagnostic Code 7305.  A temporary total rating was awarded during July 1969, and a 40 percent rating was granted in December 1969, effective August 1, 1969.  An additional temporary total rating was awarded during September 1969.  In November 1969, the Veteran underwent a vagotomy and partial gastrectomy.  Thereafter, the Veteran's service-connected duodenal ulcer disease with partial gastrectomy was rated as 60 percent disabling under Diagnostic Code 7308, effective February 1, 1970.  

In March 1983, the RO reduced the rating from 60 percent to 40 percent under Diagnostic Code 7308, effective July 1, 1983.  The Veteran's duodenal ulcer disease with partial gastrectomy has been rated as 40 percent disabling since that time.  In an April 2005 decision, the Board found that the Veteran was not entitled to a rating higher than 40 percent for his duodenal ulcer disease with partial gastrectomy.

In May 2010, the Veteran filed a claim for an increased rating of his duodenal ulcer disease, as well as a claim for entitlement to service connection for GERD, as secondary to his duodenal ulcer disease.  In an April 2011 rating decision, the RO implicitly granted service connection for the Veteran's GERD and esophageal hernia, as secondary to the Veteran's duodenal ulcer disease with partial gastrectomy.  The RO combined all of the disabilities and continued the Veteran's 40 percent disability rating under Diagnostic Code 7305-7308.  The Veteran then raised the argument that he is entitled to separate ratings for his duodenal ulcer disease and his esophageal disability.  

In March 2015, the Board remanded the Veteran's claim for a new VA examination and for consideration of whether separate ratings are warranted.  The Veteran was afforded an examination in June 2015.  Following that examination, in a July 2015 Rating Decision, the RO increased the Veteran's disability rating to 60 percent effective June 24, 2015, but continued the 40 percent rating prior to that date.  The RO noted that the Veteran met the 60 percent rating criteria effective June 24, 2015 under either Diagnostic Code 7308 or 7305, but implicitly found that a separate rating for the Veteran's esophageal disability is not warranted.

There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition.  Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14.  38  C.F.R. § 4.113 (2015).  

In this regard, 38 C.F.R. § 4.114 indicates that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other.  A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation.  However, disabilities related to the esophagus are rated under Diagnostic Codes 7203, 7204, and 7205.  Thus, the Veteran is not outright prohibited from receiving separate ratings for his duodenal ulcer disease and an esophageal disability.  

The RO has rated the Veteran's duodenal ulcer disease with partial gastrectomy, GERD, and esophageal hernia under Diagnostic Code 7305-7308.  In the present case, the RO essentially has evaluated the Veteran's symptoms under both codes to afford the Veteran the highest possible rating.  

Diagnostic Code 7308 refers to postgastrectomy syndromes.  Under Diagnostic Code 7308, a 60 percent rating, the maximum rating provided for under that code, is warranted for severe symptoms associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia.  A 40 percent rating is warranted for moderate symptoms with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, but with diarrhea and weight loss.  38 C.F.R. § 4.114, Diagnostic Code 7308 (2015).

Diagnostic Code 7305 addresses duodenal ulcers.  Under Diagnostic Code 7305, a 60 percent rating, the maximum rating provided for under that code, is warranted for severe symptoms associated with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.  A 40 percent rating is warranted for moderately severe symptoms manifested by symptoms less than "severe," but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year.  38 C.F.R. § 4.114, Diagnostic Code 7305 (2015).

The words "slight," "moderate," "moderately severe," "marked, and "severe" are not defined in the VA Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2015).  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2015).

In evaluating the Veteran's symptoms, the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012).


Background

In May and July 2010 statements, the Veteran reported that he had to sit down after every meal due to profuse sweating, dizziness, palpitations, and episodes of diarrhea that were constant.  His weight tended to fluctuate and he suffered from general malaise.  With respect to GERD, he stated that he was prescribed medication and had to sleep in an upright position due to regurgitation of food at night, with vomiting at times.  He reported frequent vomiting as a result of reflux.  He rarely ate meat and other foods because his stomach was not able to digest them.  See May 2010 and July 2010 Statements in Support of Claim (VA Form 21-4138).  

An August 2010 letter from A.R., M.D., the Veteran's private physician, states that after surgery in 1969 the Veteran developed severe bile reflux that added to his hiatal hernia, which "are a burden to his health."  

The Veteran was afforded a gastrointestinal VA examination in February 2011 at which he reported nausea after a meal several times a week and daily vomiting.  He always had dysphagia, but was always able to swallow solid food.  He had weekly esophageal distress with frequent substernal pain of moderate severity.  The Veteran also reported daily heartburn lasting one hour before eating, one to several hours after eating, and at night.  He denied hematemesis and melena.  He had weekly constipation and weekly diarrhea with a duration of episodes of one day or less.  He reported bloating, diarrhea, dizziness, fainting, nausea, pain, palpitations, and sweating within 30 minutes after eating less than weekly.  He also reported belching and early satiety.  The Veteran was taking two medications and followed a strict diet.  

On examination, there were no signs of anemia, weight loss, or malnutrition.  Laboratory testing showed normal hemoglobin and hematocrit.  His height was recorded as 68 inches and weight as 201 pounds, with no changes.  The examiner found the Veteran's overall general health to be good.  It was noted that a January 2009 endoscopy examination showed esophageal glycogen acanthosis; status post Billroth I with clean, non-ulcerated gastroduodenal anastomosis; abundant gastric bile content; single gastric diverticulum; non-erosive gastritis; and a normal duodenum.  The Veteran was diagnosed with GERD, hiatal hernia, and duodenal ulcer with partial gastrectomy with no effects on usual daily activities.  

At a February 2011 general medical VA examination, the Veteran complained of recurrent heartburn, acid reflux, epigastric burning pain several times per week, regurgitation, sore throat, swallowing difficulty of solid foods, nausea several times per week, watery/loose stools several times per week, and occasional vomiting when he did not comply with a strict diet.  He denied diarrhea, hematemesis, and melena.  He was treated with three medications.  

In a September 2012 statement, the Veteran stated that he had documented medical evidence of experiencing severe nausea, sweating, circulatory disturbances, diarrhea, and dumping syndrome every day since his operation in November 1969, but that he was not experience weight loss with malnutrition and anemia.  See attachment to September 2011 Statement in Support of Claim (VA Form 21-4138) (received October 2012). 

The Veteran's weight in March 2014 was 197 pounds.  In May 2014, the Veteran reporting feeling fine without any pain.  

On June 6, 2014, the Veteran appeared for an unscheduled VA visit due to abdominal pain with distention and severe constipation for several weeks with associated nausea, heartburn, and vomiting the day before.  There was no diarrhea, fever, hematemesis, melena, or hematochezia.  Computerized tomography (CT) suggested a possible stricture at the anastomosis site, as well as a large cyst in the right liver lobe that was thought to possibly be the cause of the abdominal discomfort.  

August 2014 esophagogastroduodenoscopy (EGD) showed a large amount of bile in the stomach, but no evidence of esophageal or anastomosis stricture or ulcers.  The diagnosis was presbyesophagus or "alteration in motor function of the esophagus as a result of degenerative changes occurring with advancing age."  See Dorland's Illustrated Medical Dictionary 1511 (32nd ed. 2012).  

August 2014 VA treatment records show the Veteran reported chronic abdominal pain described as epigastric burning sensation after meals.  He also reported intermittent episodes of dysphagia to solids and liquids, but denied choking episodes.  Symptoms of hoarseness and sore throat were also reported.  The Veteran was started on sucralfate before meals to aid with reflux symptoms and he reported improvement with the GERD and pain after meals after therapy was started.  

In September 2014, the Veteran was afforded a VA examination for anemia.  He reported being diagnosed with anemia by his primary care provider and prescribed vitamins as treatment.  Laboratory testing from July 2014 showed hemoglobin of 12.5 (normal 12.6 - 17.8) and hematocrit of 38.2 (normal 37.9 - 54.5).  The examiner opined that the anemia was at least as likely as not due to the Veteran's gastric disability, but did not impact the Veteran's ability to work.  

An October 2014 barium swallow shows the swallowing mechanism was grossly unremarkable.  Poor propagation of the primary peristaltic esophageal wave was observed, with multiple tertiary, nonpropulsive waves also visualized.  No strictures, masses, or GERD were observed.  The gastroesophageal junction was grossly normal.  There was a small sliding hiatal hernia.    

At his December 2014 Board hearing, the Veteran testified to more frequent postprandial symptomatology, including daily nausea and vomiting, frequent heartburn, and constant dysphagia.  He reported sweating when vomiting.  He did not require the use of adult pads.  The Veteran's son testified to a recent event at a restaurant where the Veteran had to run to use the bathroom immediately after eating.  

In December 2014, the Veteran was seen for swallowing evaluation.  The Veteran reported that he had swallowing limitations since 1969, but that his biggest concerns were reflux episodes, change in voice, and not sleeping due to the reflux.  It was noted that the Veteran was not complaint with reflux medication and not following reflux precautions.  He was eating regular food and thin liquids.  His weight was 190 pounds.  The Veteran was evaluated at an American Speech-Language-Hearing Association (ASHA) functional measure level 5, meaning swallowing was safe with minimal diet restriction and/or occasionally required minimal cueing to use compensatory strategies.  A January 2015 follow up shows the Veteran was eating regular food and only partially following recommendations.

In May 2015, the Veteran's weight was recorded as 199 pounds.

In June 2015, the Veteran was afforded a VA examination for esophageal conditions.  The Veteran reported that his condition had become progressively worse over the years.  He reported constant acid reflux despite medical treatment, and recurrent nausea and vomiting.  The reflux interfered with his sleep.  The examiner identified that the Veteran had the following symptom combinations that were productive of severe impairment of health:  persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux of four or more per year lasting less than one day; four or more episodes of nausea per year lasting less than one day; and four or more episodes of vomiting per year lasting less than one day.  The examiner found that the Veteran did not have esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or acquired diverticulum of the esophagus.  The examiner commented that the Veteran's symptoms were moderate to severe, as there was evidence on the 2014 EGD of severe gastritis, as well as esophageal bile reflux that correlated with the Veteran's complaints and symptoms.  The examiner found, however, that the Veteran's esophageal disability did not impact his ability to work.  

In July 2015, the Veteran was afforded a VA examination for stomach and duodenal conditions.  The Veteran reported dumping syndrome with diarrhea on a weekly basis, abdominal pain occurring less than monthly that was continuous and only partially relieved by standard ulcer therapy, and recurrent nausea with one episode per year.  There were no incapacitating episodes due to symptoms of any stomach or duodenum condition.  However, he reported severe postgastrectomy syndrome symptoms of nausea, sweating, circulatory disturbance after meals, and diarrhea; hypoglycemic symptoms; and weight loss with malnutrition and anemia.  Symptoms and confirmed diagnosis of alkaline gastritis or of persisting diarrhea were noted. 

The examiner noted the Veteran's 2009 EGD and August 2014 EGD, which showed bile esophagitis and bile gastritis, but no stricture on anastomosis sites.  The examiner opined that the Veteran's gastric disability had become progressively worse, as there is evidence of esophagitis, dumping syndrome, stricture of the anastomosis (the Board notes this is inconsistent with the objective evidence), presbyesophagus, bile gastritis, and esophagitis.  However, the examiner found that none of the Veteran's stomach or duodenum conditions impacted his ability to work.

Analysis

After a careful and thorough review of all the medical and lay evidence of record, the Board finds that the currently assigned 40 percent disability rating for the Veteran's gastric disability appropriately approximates the Veteran's degree of disability for the period prior to June 6, 2014.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms warrant a 60 percent disability rating for the period beginning on June 6, 2014.  Thus, the Board is granting a 60 percent rating approximately one year earlier than the June 24, 2015 grant.  

For the period on appeal prior to June 6, 2014, the collective evidence shows that the Veteran's gastric disability exhibited symptoms that most nearly approximate the rating criteria for a 40 percent evaluation under Diagnostic Code 7308.  The Veteran exhibited moderate symptoms of nausea after a meal several times a week, esophageal distress of moderate severity several times a week to weekly, vomiting occasionally to daily at times, watery/loose stools several times per week, difficulty swallowing solid foods, and sore throat.  The Veteran specifically stated that he did not experience weight loss with malnutrition or anemia, and denied hematemesis or melena.  There was no objective evidence of anemia and the Veteran's weight was stable.

The Board notes that the Veteran does not fully meet the criteria under Diagnostic Code 7308 for a 40 percent rating, as it requires moderate symptoms with weight loss to satisfy the rating criteria.  The Veteran also does not meet the criteria under Diagnostic Code 7305 for a 40 percent rating because he did not exhibit anemia and weight loss or experience incapacitating episodes averaging 10 days or more.  Nonetheless, the RO determined that the severity of the Veteran's overall disability picture warranted the 40 percent rating.  38 C.F.R. § 4.114 (2015).

The RO granted a 60 percent rating effective June 24, 2015, the date of the VA examination.  The Board finds, however, that the objective evidence of record shows that the Veteran's symptomatology began to increase as of June 6, 2014, the date the Veteran sought treatment for abdominal pain with distention and severe constipation.  

The June 2016 VA examiner found that the Veteran exhibited symptom combinations that were productive of severe impairment of health including persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux, and episodes of nausea and vomiting.  The examiner based his opinion that the Veteran's symptoms had progressed and were moderate to severe, in large part, on the August 2014 EGD that showed a significant amount of bile in the Veteran's stomach.  

Also, in September 2014, a VA examiner determined that the Veteran had anemia related to his gastric disability.  In a November 2014 rating decision, the RO granted service connection for anemia (also claimed as fatigue) with a separate evaluation of 10 percent effective August 4, 2014 to June 24, 2015.  

The Board notes that the Veteran did experience weight loss of seven pounds from March 2014 to December 2014; although, the weight loss was temporary in that the Veteran gained nine pounds by May 2015.  Nonetheless, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's gastric disability exhibited symptoms that more nearly approximate the rating criteria for a 60 percent evaluation under either Diagnostic Code 7308 or 7305 beginning on June 6, 2014.  

The Veteran contends that he is entitled to a separate rating for his esophageal disability.  Diagnostic Codes 7203 through 7205 provide ratings for esophageal stricture (obstruction), spasm, or diverticulum.  Diagnostic Codes 7204 and 7205 instruct the rater to apply Diagnostic Code 7203.  The Board acknowledges that the Veteran has had ongoing dysphagia, which might appropriately be rated under Diagnostic Code 7203 for stricture of the esophagus in some circumstances.  See 38 C.F.R. § 4.114, Diagnostic Code 7203 (2015).  However, no physician has diagnosed the Veteran with a stricture of the esophagus and objective imaging has not shown a stricture.  Therefore, the Board finds that a separate rating for the Veteran's esophageal disability is not warranted, as there is no medical evidence of esophageal stricture.  

The Veteran is not service-connected for a marginal ulcer, liver disorders, intestinal disorders other than duodenal ulcer, rectal disabilities, ventral hernia, cancer, or pancreatic disorder, such that higher ratings can be considered at any time during the course of the claim under Diagnostic Codes 7306, 7312, 7323, 7330, 7332, 7333, 7339, 7343, 7345, 7347, 7351, 7354.  Because of the overall nature of the Veteran's disability and overlapping symptomatology, the Board finds that the rating criteria applied by the RO (i.e., the higher evaluation under either Diagnostic Code 7308 or 7305) are appropriate.  See Pernorio v. Derwinski, 2 Vet. App. 625 (1992); 38 C.F.R. §§ 4.20, 4.21 (2012).  The Board can identify no more appropriate diagnostic codes.  See Butts v. Brown, 5 Vet. App. 532 (1993).   

In sum, the Board finds that the Veteran's gastric disability is appropriately rated as 40 percent disabling prior to June 6, 2014, and warrants an increased rating of 60 percent as of that date. 

C.  Right Ankle

Rating Criteria

The Veteran contends that his right ankle disability is more severe than what is reflected by the currently assigned 10 percent rating.  The Veteran's residuals of a simple fracture of the right distal fibula have been rated under Diagnostic Code 5299-5271 as an ankle disability.  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2015).  Diagnostic Code 5299 refers to an unlisted disability of the musculoskeletal system, while Diagnostic Code 5271 pertains to the ankle. 

An ankle disability is rated under Diagnostic Code 5271 on limitation of motion.   A 10 percent evaluation is assigned where the limitation of motion is "moderate."  A 20 percent evaluation is assigned where the limitation of motion is "marked."  A 20 percent disability rating is the highest possible schedular rating under Diagnostic Code 5271.  38 C.F.R. § 4.71a, Diagnostic Code 5271 (2015).  Higher disability ratings of 30 and 40 percent are possible under Diagnostic Code 5270 with evidence of ankylosis.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 

Normal range of motion for the ankle is plantar flexion from 0 to 45 degrees and dorsiflexion from 0 to 20 degrees.  See 38 C.F.R. § 4.71a, Plate II (2015).  

In addition, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45 (2014); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  However, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Mitchell, 25 Vet. App. at 33 and 43.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

Background

At his January 2011 VA examination, the Veteran reported that he did not have much pain in his ankle.  However, he was unable to stand for more than a few minutes or to walk more than a few yards.  On examination, the Veteran had full range of motion in the ankle.  Dorsiflexion was to 20 degrees with pain in the last 10 degrees, but no functional loss.  Plantar flexion was to 45 degrees with pain in the last 20 degrees, but no functional loss.  No assistive device was needed to walk, but the Veteran limped from the right leg.  There was evidence of abnormal weight bearing, with the Veteran putting weight on his left foot and unusual shoe wear pattern.  There was no evidence of flare-ups, leg shortening, genu recurvatum, bone disease, or malunion of the os calcis or astragalus.  The examiner found the Veteran's disability to prevent exercise and sports participation and to have a mild impact on chores, shopping, recreation, and traveling, but to have no impact with respect to self-care activities.  With respect to employment, the examiner found it was unfeasible for the Veteran to do jobs that required standing or ambulation for more than 20 minutes.  He was able to do sedentary jobs however.     

Private treatment records show the Veteran underwent physical therapy in January and February 2013 due to pain in his ankles.  The Veteran reported that for the last two months he had a lot of pain in the right ankle and calf.  He also had pain in the left ankle because he compensated with that leg.  The Veteran slipped in December 2012.  At the end of therapy, the Veteran reported he was walking with less difficulty and the pain in the right ankle had improved.  

VA treatment records show the Veteran sought treatment in November 2013 for foot pain.  He reported that a community podiatrist had given him a cortisone injection at the right foot.  X-rays were noted as showing age appropriate osteopenia and vascular calcifications, but were otherwise normal.  The assessment was mild right resolving peroneal tendinitis.  The Veteran was to use orthopedic shoes and right and left ankle supports.  

On February 11, 2014, the Veteran reported right leg pain since he fractured his ankle.  Neurologic examination showed no gross motor or sensory deficit.  He was tender in the right ankle and had some swelling, but had full range of motion.  In March 2014, the Veteran began complaining of a shooting pain in the foot and numbness in the right leg.  Range of motion was intact.  The Veteran was instructed in a home exercise program to strengthen his ankles.  June 2014 nerve conduction studies showed generalized axonal sensorimotor neuropathy, with significant difference in parameters of peroneal and tibial motor nerves when comparing right and left lower extremities.  Range of motion was normal.  In August 2014, the Veteran had an electromyogram to rule out peripheral neuropathy versus right peroneal neuropathy.  The testing was inconclusive and could not rule out sciatic nerve versus peroneal nerve injury versus polyradiculopathy.  The testing did show diffuse predominately axonal peripheral neuropathy worse on the right side.  The Veteran reported bilateral mild ankle edema and occasional lancinating pain at night in both legs.  Range of motion was intact.  The Veteran underwent six sessions of physical therapy ending in January 2015.  In March 2015, the Veteran exhibited limitation in range of motion of his ankle and was noted in VA treatment records to use a cane for the first time.  Neurological examination was decreased bilaterally.  The assessment was that mild right peroneal tendinitis was resolving.    

At his December 2014 Board hearing, the Veteran testified that he needed a cane to walk, he had pain in the ankle rated as 9 or 10/10, and his ankle was swollen.

The Veteran was afforded a second VA examination in June 2015.  The Veteran complained of swelling, increased pain, and decreased range of motion in his right ankle over the last five years.  He reported that he limped, was limited in the amount of standing and walking he could do, was frequently awakened from sleep by pain, and had much difficulty climbing stairs.  He avoided going anywhere he had to stand in a line and walked only very short distances.  He always used a cane and an ankle brace.  He reported decreased range of motion, strength, and ability to ambulate and stand due to ankle pain during flare-ups.  

On examination, range of motion was to 5 degrees with dorsiflexion and to 18 degrees with plantar flexion.  Pain was noted on rest, with movement, and weight bearing.  There was tenderness to palpation at the lateral malleolus, but no ankle instability.  The Veteran was able to perform repetitive use testing, without additional loss of function or range of motion thereafter.  However, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups.  There was swelling at the ankle joint and crepitus.  There was no ankylosis of the ankle, ankyloses of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy.  October 2014 x-rays showed mild soft tissue edema, osteopenia, and degenerative changes of the ankle.  In contrast, the examination of the left ankle was normal and without pain.  The examiner opined that, if the Veteran were to work, he should work at a sedentary job and should not have to walk on irregular terrain or stand for more than five minute increments.  The examiner noted that the Veteran is independent in self care, bathing, and dressing, and is able to don and doff his socks, shoes, and ankle brace independently.

Analysis

After a careful and thorough review of all the medical and lay evidence of record,  and taking into account possible additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, the Board finds that the currently assigned 10 percent disability rating for the Veteran's right ankle disability appropriately approximates the Veteran's degree of disability for the period on appeal prior to February 11, 2014; however, as of February 11, 2014, the Board finds that the Veteran's right ankle disability warrants a 20 percent disability rating.   

Prior to February 11, 2014, the Veteran's range of motion in his right ankle was found to be within normal limits.  There was no evidence of flare-ups or additional loss of function or range of motion after repetitive use.  No swelling or crepitus present was present.  While the Veteran walked with a limp and had decreased mobility, he was walking without assistive devices.  Treatment was intermittent at best, when considering the treatment in early 2013 that appears in to be at least in part related to a fall and a complaint in November 2013, but was not ongoing or continuous.  While there were occasional complaints of pain, it should be noted that pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment.  Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  The totality of these factors suggest that the Veteran's disability was only moderate, warranting a 10 percent disability rating.

However, as of February 11, 2014, the Veteran had consistent complaints and treatment regarding his ankle.  The ankle began exhibiting limitation in motion, swelling, and crepitus.  The Veteran reported flare-ups and decrease in function following repetitive use.  He began using assistive devices to ambulate and to provide support for his ankle.  The examiner found the Veteran was only able to walk or stand for five minutes at a time.  Based on the foregoing factors, the Board finds that the higher 20 percent rating for marked impairment more appropriately reflects the Veteran's overall functional impairment due to his ankle disability for the period beginning February 11, 2014.

The criteria for the next higher rating, 30 percent, have not been met at any point during the rating period on appeal.  Diagnostic Code 5270 provides for a disability rating greater than 20 percent; however, it is not for application as the Veteran's disability is not manifested by ankylosis.  38 C.F.R. § 4.71a, Diagnostic Code 5270 (2015).  Ratings in excess of 20 percent are also available under Diagnostic Code 5262 when there is marked ankle disability, but only in cases where there is also malunion of the tibia or fibula.  However, there is no objective evidence of malunion of the tibia or fibula in the present case.  Therefore, a rating in excess of 20 percent is not warranted under Diagnostic Code 5262.  

The Board finds that a separate rating for neurological impairment is not warranted in the present case.  The Board acknowledges that the Veteran began complaining of bilateral shooting foot pain and right leg pain in February 2014.  However, despite significant testing, no physician has associated the Veteran's neurological symptoms with the Veteran's right ankle disability.  Moreover, to the extent that the Veteran's neurological examinations have been decreased, they have been decreased in both feet.  This fact weights against a finding that the Veteran's shooting pan in his feet is related to the Veteran's right ankle.  Moreover, the Board notes that the pain may be related to nonservice-connected disorders.  For example, the Veteran was diagnosed with diabetes mellitus in 2006, which is often associated with peripheral neuropathies.

D.  Left Ear Hearing Loss  

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz).  To evaluate the degree of disability from service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2015).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2015).  Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be considered separately.  38 C.F.R. § 4.86(b) (2015).

If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of section 3.383 pertaining to special consideration for paired organs.  38 C.F.R. § 4.85(f) (2015).   

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist.  It also must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  38 C.F.R. § 4.85(a) (2015).     

Pure tone thresholds, in decibels, from audiometric testing in a February 2015 VA examination, for the frequencies of interest, in Hertz, were as follows:  


HERTZ

500
1000
2000
3000
4000
LEFT
10
10
65
90
85

The speech recognition score based on the Maryland CNC test was 88 percent in the left ear, and use of word recognition score was found to be appropriate for the Veteran.  

Pure tone thresholds, in decibels, from audiometric testing in a January 2016 VA examination, for the frequencies of interest, in Hertz, were as follows:  


HERTZ

500
1000
2000
3000
4000
LEFT
10
10
60
90
85

The speech recognition score based on the Maryland CNC test was again 88 percent in the left ear, and use of word recognition score was found to be appropriate for the Veteran.  

The Veteran has a pure tone threshold average decibel loss of 63 in February 2015 and of 61 in January 2016.  The Board finds that applying the results from either the February 2015 or the January 2016 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the left ear.  When only one ear is service connected and hearing loss is at Level III in the service-connected ear, a noncompensable rating is assigned under Table VII.  38 C.F.R. § 4.85 (2015).  In addition, the Board notes that the Veteran's left ear does not demonstrate an exceptional pattern of hearing impairment under the provision of 38 C.F.R. § 4.86(a).  

The Board acknowledges that, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the court noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities.  In both February 2015 and January 2016, the Veteran reported the impact of his hearing loss on his ordinary condition of daily life to be that it causes him depression and anxiety.  No occupational functional effects were reported to the audiologist.  In his March 2015 Notice of Disagreement, the Veteran stated the following with respect to his hearing loss:

This condition has led me into a state of depression and anxiety due to my traumatic inability to hear, understand, and perceive with clarity what is spoken or conveyed.  ... In noisy or difficult environment, I find it very difficult to understand what is said.  Then, I am forced to read lips, observe facial expressions and body language.  Most of the times it becomes too difficult to understand what is being said or uttered.  When more than one person speaks at one given time, I lose the entire message.  At times, I have to ask the speaker to slow down, while reminding them to avoid shouting.  Otherwise, I will miss the meaning altogether.

To the extent the Veteran has impairment in his daily life, his inability to hear is contemplated by the hearing loss criteria.  Thus, the Board finds that the above examinations are adequate for rating purposes and are entitled to greater probative value than the Veteran's lay statements. 

The Board observes that the Veteran submitted a March 2015 private Hearing Evaluation Report from a physician in support of his claim; however, the Board finds that the report is inadequate for rating purposes.  As a starting point, the report does not indicate whether this examination was conducted by a state-licensed audiologist.  As noted above, all hearing examinations for VA rating purposes must be conducted by a state-licensed audiologist.  In addition, the private practitioner assigned speech recognition thresholds; however, the report does not state whether the Maryland CNC test was used for this examination.  VA requires that the Maryland CNC test be used.  Most importantly, testing was not conducted at the frequency of 3000 Hertz, which is required for VA rating determinations.  Because no testing was performed at the frequency of 3000 Hertz, remanding the claim for clarification of whether the evaluation was performed by a state-licensed audiologist and the type of speech recognition testing performed is unnecessary.  

The Board sympathizes with the Veteran's complaints that he has lost a very significant amount of hearing, but the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination.  The findings on examination are more probative than the lay contentions as to the extent of hearing loss.  

The Board notes that a noncompensable rating does not mean that the Veteran's hearing is normal.  The grant of service connection acknowledges that the Veteran has hearing loss.  Rather, the disability rating reflects that the Veteran's degree of disability from his service-connected defective hearing does not meet VA's criteria for a compensable rating. 

In sum, the Veteran's claim for increase must be denied.

E.  Other Considerations

In finding the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to higher ratings.  His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of his disabilities based on objective data coupled with the lay complaints.  In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment.  

The Board also has considered whether the Veteran is entitled to a greater level of compensation for the disabilities at issue on an extraschedular basis.  The Rating Schedule represents, as far as is practicable, the average impairment of earning capacity.  See 38 C.F.R. § 3.321(a), (b) (2015).  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2015).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

To make this threshold determination, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required.  Thun, 22 Vet. App. at 115. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected gastric disability with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated.  Additionally, as seen above, the Board has taken into consideration those symptoms that are not explicitly listed as examples under the diagnostic codes; therefore, there are no additional symptoms that are not addressed by the rating schedule or that have not been considered by the Board in assigning the appropriate rating.  The Veteran also has not described any exceptional or unusual features of his gastric disability, and there is no objective evidence that any manifestations are unusual or exceptional.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected gastric disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Consequently, the Board concludes that referral of this case for consideration of an extraschedular rating is not warranted.  Id. at 115-16; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

Regarding the Veteran's ankle disability, the schedular rating criteria contemplate the extent and severity of the Veteran's symptoms, which primarily consist of pain and functional impairment.  The symptoms associated with the Veteran's ankle disability are not shown to cause any impairment that is not already contemplated by the applicable rating criteria.  The schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.  Accordingly, the Board finds that all findings and impairment (painful motion, limitation of motion, functional limitation with repetitive use, flare-ups, a limp, and swelling) associated with the ankle disability are encompassed by the schedular criteria for the rating assigned.   

Similarly, the relevant hearing loss criteria contemplate both the Veteran's pure tone and speech discrimination scores, as well as his complaints that he has lost hearing.  Interference in the Veteran's ability to hear is shown and accounted for in the assigned disability rating.  The evidence does not indicate the presence of any impairment that cannot be classified in one of the foregoing categories.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Consequently, referral for extraschedular consideration is not warranted. 

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

III.  ENTITLEMENT TO A TDIU

The Veteran is seeking entitlement to a total disability rating due to unemployability caused by his service-connected disabilities.  In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).  Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015).

When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned.  If there is only one service-connected disability, it must be rated at 60 percent or more.  If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent.  See 38 C.F.R. § 4.16(a) (2015).  A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 

For a veteran to prevail on a claim for a TDIU, the record must reflect some factor that takes the case outside the norm.  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  See 38 C.F.R. 4.16(a) (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Under 38 C.F.R. § 4.16(a), marginal employment cannot be considered substantially-gainful employment.  Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the veteran.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

During the pendency of the Veteran's claim, which was raised in March 2010, service connection has been in effect for gastric disability, evaluated as 40 percent disabling and 60 percent disabling from June 6, 2014; perforating wound of the left buttock, evaluated as 20 percent disabling; right ankle disability, evaluated as 10 percent disabling and 20 percent disabling from February 11, 2014; tinnitus, evaluated as 10 percent disabling; scar from partial gastrectomy, evaluated as 0 percent disabling and 10 percent disabling from August 8, 2011; anemia, evaluated as 10 percent disabling effective August 4, 2014 to June 24, 2015; and simple fracture at the base of the first metacarpal of the left hand, left ear hearing loss, right inguinal hernia, and shell fragment wound of the left parietal region without residuals, all evaluated as 0 percent disabling.  

The Veteran's combined disability rating during the pendency of his claim is 60 percent prior to August 8, 2011, and at least 70 percent thereafter.  Therefore, the Board finds that the Veteran's service-connected disabilities do not meet the schedular criteria for a TDIU prior to August 8, 2011, but do meet the schedular criteria thereafter.  38 C.F.R. § 4.16(a) (2015).  Although it is not necessary to specifically calculate the Veteran's combined disability rating in light of the earlier increased ratings granted in this decision, the Board notes that the Veteran would have a combined disability rating of 80 percent by June 6, 2014.   

Notwithstanding that the Veteran does not meet the schedular criteria for a TDIU prior to August 8, 2011, it is the policy of VA that all veterans who are unable to secure and follow a substantially-gainful occupation by reason of a service-connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b)(2015).  Thus, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability.  38 C.F.R. § 4.16(b) (2015).  Therefore, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a TDIU on an extraschedular basis.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  However, as will be discussed below, the evidence does not show that the Veteran is unemployable due to his service-connected disabilities prior to June 6, 2014; therefore, the Board finds that referral on an extraschedular basis for a TDIU prior to August 8, 2011 is not warranted in the present case.

The inquiry now becomes whether the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially-gainful occupation.  The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities.  

With respect to education, the Veteran completed two years of high school, and has had no additional education or training.  See July 2010 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940).   

The Veteran worked for the same employer since 1981 as a sales clerk providing counter service.  Beginning in 2005, the Veteran worked 40 hours per week, but lost approximately 10 days due to illness.  In 2008, the Veteran decreased to 30 hours per week and reported losing 20 days to illness.  The Veteran reports that he last worked on June 30, 2010.  See July 2010 VA Form 21-8940.  The Veteran's employer states that the Veteran retired on June 25, 2010, and notes that he had no set hours.  The Veteran had many VA appointment and hospitalizations and came and went as his health allowed.  See August 2010 Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192).

As discussed above, VA examiners found in February 2011, June 2015, and July 2015 that the Veteran's gastric disability does not impact his ability to work.  Similarly, a September 2014 VA examiner found that the Veteran's anemia does not impact the Veteran's ability to work.  VA examiners in February 2011 and June 2015 found that the Veteran's right ankle disability prevents the Veteran from ambulating or standing for more than five minute increments, but does not prevent him from engaging in sedentary work.  A September 2011 VA examiner noted the Veteran reported that the gastrectomy scar makes it difficult to bend due to pain and discomfort, but found it did not impact the Veteran's ability to work.  A January 2011 VA examiner found that the Veteran's left hand had full range of motion and good strength, and that there were no limitations for any kind of job.  The Veteran is right hand dominant.  

With respect to his left ear hearing loss and tinnitus, the Veteran reported at VA examinations in February 2015 and July 2016 that they cause him depression and anxiety.  In his March 2015 Notice of Disagreement, the Veteran stated that he has difficulty hearing in noisy environments or when more than one person speaks at a time.  He also has to ask the speaker to slow down at times.  

The Veteran has submitted a June 2013 statement from a VA primary care physician in support of his TDIU claim.  The physician states that the Veteran is receiving care from VA due to diabetes, sleep apnea, coronary artery disease, history of peptic ulcer status post partial gastrectomy, hypertension, chronic obstructive pulmonary disease/emphysema, hyperlipidemia, and GERD.  The physician continues that the Veteran is 87 years old and, due to his age and comorbidities, he is currently unable to secure or follow a substantially-gainful occupation.  Unfortunately, this opinion is entitled to no probative value because it is based on several significant nonservice-connected disorders and the age of the Veteran, which cannot be considered when evaluating a claim for a TDIU. 

The Board finds that the evidence of record is at least in equipoise as to whether the Veteran is able to secure or follow a substantially-gainful occupation due to his  service-connected gastric disability as of June 6, 2014 when his symptoms increased significantly and he was granted an evaluation of 60 percent.  Given the Veteran's symptoms of persistent epigastric distress; daily or near daily heartburn, nausea, and vomiting, and the need to use the restroom immediately after eating that are productive of severe impairment of health, the Board does not find it realistic that the Veteran could secure or follow a substantially-gainful occupation, even if he is otherwise physically and mentally capable of performing sedentary work.  There are few jobs that would allow the Veteran to drop everything and run to the restroom.  For approximately 25 years, the Veteran worked a service counter presumably interacting with customers.  It is not feasible for the Veteran to continue in this line of work because it would not be acceptable to employers for the Veteran to run away from customers.  In addition, the Veteran would require significant retraining to be able to secure a different type of job.  Given the Veteran's educational background and work history, there is no evidence that he had any computer training or data entry skills that would allow him to work at home on a flexible schedule to accommodate his urgent needs to use the restroom.  While the Veteran might be able to perform some jobs, the Board finds that it is unlikely that such jobs would result in more than marginal employment.  

The Board acknowledges that no VA examiner has found the Veteran unable to secure or follow a substantially-gainful occupation due to his service-connected disabilities.  However, applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  

Given that the evidence is in equipoise as to whether the Veteran is able to secure and follow substantially-gainful employment, he is entitled to the benefit of the doubt.  Therefore, in light of the Veteran's educational and occupational history and the constraints noted above, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially-gainful occupation consistent with his educational background and employment history beginning on June 6, 2014.  Therefore, entitlement to a TDIU is warranted beginning on June 6, 2014.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

With respect to the period prior to June 6, 2014, the Board does not find that the Veteran's service-connected disabilities, either alone or in combination, render him unable to secure or follow a substantially-gainful occupation.  As found above, the Board determined that it is the Veteran's gastric disability that renders the Veteran unable to work beginning on June 6, 2014.  However, prior to that period, the Veteran was experiencing only moderate symptoms relating to his gastric disability.  He was experiencing nausea, esophageal distress of moderate severity, and diarrhea only several times per week, versus daily or after nearly every meal as in the period after June 6, 2014. 

As the Board has found that the Veteran is capable of performing the acts required in securing and following a substantially-gainful occupation prior to June 6, 2014, referral on an extraschedular basis for a TDIU is not warranted for the period prior to August 8, 2011.


ORDER

A disability rating in excess of 40 percent for duodenal ulcer, GERD, and esophageal hernia prior to June 6, 2014 is denied.  

Subject to the laws and regulations governing monetary awards, an earlier disability rating of 60 percent for duodenal ulcer, GERD, and esophageal hernia beginning June 6, 2014 is granted.  

A disability rating in excess of 10 percent for a right ankle disability prior to February 11, 2014 is denied.  

Subject to the laws and regulations governing monetary awards, a disability rating of 20 percent for a right ankle disability beginning February 11, 2014 is granted.

Entitlement to a compensable disability rating for left ear hearing loss is denied. 


Subject to the laws and regulations governing monetary awards, entitlement to a TDIU beginning on June 6, 2014 is granted.  



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs