Citation Nr: 1751964 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-30 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound to the abdomen with scarring. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned during a July 2016 hearing. A transcript of that hearing is of record. This case was remanded for further development in October 2016; the instructions have been substantially complied with. See 38 U.S.C.A. § 5103A(b), Stegall v. West, 11 Vet. App. 268 (1998), D'Aries v Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). FINDINGS OF FACT 1. The Veteran's GERD has manifested symptoms including arm pain; persistently recurrent epigastric distress; pyrosis (heartburn and/or reflux); and shoulder pain. The Veteran's GERD has not caused dysphagia or regurgitation, nor has it been shown to have caused considerable impairment of the Veteran's health. 2. Symptoms of the Veteran's Group XIX muscle injury, a residual of the of the Veteran's service-connected gunshot wound, have not caused more than moderate functional loss during the period on appeal. 3. The residuals scars of the Veteran's service-connected gunshot wound are shallow, stable, non-painful, and they cover a combined area of less than 12 inches. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for GERD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346 (2017). 2. The criteria for an initial disability rating in excess of 10 percent for residuals of a gunshot wound to the abdomen with scarring have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.56, 4.73, DC 5319, 4.118, DCs 7801, 7804, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A copy of the relevant laws and regulations governing the Veteran's claims have were provided to him in the Statement of the Case dated November 2011 and supplemented in February 2016 and December 2016. I. GERD The Veteran is seeking an initial rating in excess of 10 percent for his service-connected GERD. In order to qualify for a higher rating of 30 percent the Veteran must show that his GERD caused persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which is productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. The Veteran's service treatment records (STRs) show that the Veteran complained of epigastric pain in July 1967, reporting pain and occasional vomiting. Private treatment records and VA treatment records from 1968 to the present show continuing complaints of epigastric pain since leaving service. The Veteran has also complained in recent years of pyrosis and arm, shoulder, and substernal pain. However, the Veteran has generally denied nausea, vomiting, dysphagia, and unintentional weight loss. The Veteran described these symptoms at his July 2016 hearing. His wife also testified, stating that she has seen him suffering these symptoms and noticed that they intensify when he does not take his medication. One notable exception to these denials is a possible syncopal episode from July 2016. The Veteran reported that while seated, his gastritis caused him to become lightheaded and pass out. He also told a doctor at the time that when his gastritis acted up he sometimes experiences sever nausea. However, the treating doctor noted that the Veteran was a poor historian on this issue and that previous tests for similar instances revealed no cause. The doctor noted that the Veteran may well have fallen asleep without this being caused by his gastritis. It is also unclear whether or not his gastritis is a diagnosed condition or related to his GERD. The Veteran was provided VA examinations to establish the effects of his GERD in November 2010 and November 2016. The November 2010 VA examiner noted the Veteran's complaint of epigastric pain occurring as frequently as three or four times in a month and lasting one hour each time. The following symptoms were noted as absent: dysphagia; heartburn; scapular pain; arm pain; hematemesis; passing of black tarry stools; reflux; regurgitation of stomach contents; nausea; and vomiting. The Veteran denied any overall functional impairment caused by his GERD symptoms. The November 2016 VA examiner noted symptoms including: persistently recurrent epigastric distress; pyrosis; reflux; and pain in his arm, shoulder and substernal area. The Veteran specifically denied nausea, vomiting, and other esophageal symptoms. The examiner excluded any other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's GERD and noted no effect on the Veteran's ability to work. The Veteran has not claimed that his GERD causes dysphagia or a considerable impairment of his health. In fact he has specifically denied these symptoms. His extensive medical history, as well as two VA examinations, support his statements. Even if the Board assumed that the Veteran's syncopal episode in July 2016 was related to GERD and rose to the level of a considerable impairment of health, it did not cause dysphagia. Each of these symptoms is necessary for a higher rating of 30 percent for GERD. DC 7346. Therefore, the Board finds that the evidence weighs against granting the Veteran's request for a rating in excess of 10 percent for GERD. II. Residuals of a Gunshot Wound The Veteran is seeking an increased rating in excess of 10 percent for his service-connected residuals of a gunshot wound to the abdomen with scarring. i. Muscle Injury The Veteran is currently rated at 10 percent for moderate injury to muscle group XIX under DC 5319. Muscle injuries are rated as slight, moderate, moderately severe, or severe. DC 4.73. A higher rating of 30 percent for a moderately severe injury requires evidence of the following: (i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. Id. Consideration of these factors "is essentially a totality-of-the-circumstance test and no single factor is per se controlling." Tropf v. Nicholson, 20 Vet. App. 317, 325 (2006). The Veteran's STRs note removal of a missile from abdominal cavity with no sequelae. They also note the epigastric scar caused by the surgery. No notes indicate a prolonged period of hospitalization for treatment of this wound in service. The Veteran's STRs are silent for complaints of the cardinal signs and symptoms of muscle disability. A review of the Veteran's post-service medical records reveals consistent complaints of abdominal pain. The Veteran has often stated that this pain is connected to his gunshot wound and that a piece of shrapnel has evaded detection and remains in his abdomen. The Veteran was provided VA examinations for his muscle injury in December 2015 and November 2016. The December 2015 examiner noted a small or linear entrance scar indicating a short track of missile through muscle tissue. No debridement, infection, sloughing of soft parts, or intramuscular scarring was noted. The cardinal signs and symptoms of muscle disability were noted absent. The examiner noted no known fascial defects or evidence of same. Muscle testing revealed full muscle strength with no atrophy. The Veteran described intermittent abdominal pain centered on a big knot that sometimes moved and could be held in his hand. At his July 2016 hearing the Veteran testified that his condition was worsening. He specifically stated that his gunshot wound was causing him trouble bending over and turning. In response to a question about straining to use the bathroom he stated that his doctors had told him not to strain, but it happened sometimes, causing pain in his abdomen. He also noted feeling pain in his abdomen when he pushed down on something with both hands, and having trouble bending certain angles when doing his yardwork. The Veteran specified that this trouble was caused by pain, not weakness of the muscle. His wife also testified that she saw him dealing with these symptoms, sometimes yelping when he tried to get out of bed. The allegation of worsening symptoms lead to a remand for a new VA examination. The November 2017 examiner noted a small or linear entrance scar indicating a short track of missile through muscle tissue. No debridement, infection, sloughing of soft parts, or intramuscular scarring was noted. The cardinal signs and symptoms of muscle disability were noted absent. The examiner noted no known fascial defects or evidence of same. Muscle testing revealed full muscle strength with no atrophy. The Veteran described intermittent abdominal pain centered on a big knot that sometimes moved and could be held in his hand. He described pain with straining and bending. The examiner noted that the Veteran described shrapnel moving around his stomach, causing a painful lump that could be held in his hand. However, the examiner noted that a November 2015 abdominal/pelvic CT scan found no shrapnel. The examiner also noted that the Veteran had an uneventful MRI scan of his back, a test which would not normally be performed on a patient with shrapnel inside them. The examiner did not note any complaint from the Veteran regarding trouble bending or using the toilet or record any evidence of these symptoms. A full review of the record, including the Veteran's statements, does not show that any of the three criteria for a higher 30 percent rating has been satisfied. The small or linear entrance scar shows no signs of debridement, infection, sloughing of soft parts, or intramuscular scarring, so the first criterion is not satisfied. STRs did not record a prolonged hospitalization for treatment and neither the Veteran's STRs, post-service medical records, or VA exams, recorded complaints of the cardinal signs of muscle injury. The Veteran's testimony at his hearing, supported by his wife's observations, regarding trouble bending at certain angles or pushing with both hands might be interpreted as impairment of coordination or uncertainty of movement. However, even if one or both of these symptoms rise to the level of a cardinal sign of muscle injury, the Board does not consider a single mention over 40 years after the injury to be "consistent complaint" as required by this criterion. Furthermore, the Board notes that both before and after making this complaint, the Veteran was examined by VA examiners who saw no objective evidence verifying that the Veteran's gunshot wound caused the claimed symptoms. While the Veteran as a layperson is competent to report the symptoms he experiences, he does not have special medical training qualifying him to diagnose the cause of non-obvious internal symptoms. While his wife is a registered nurse, she did not state that she had examined him and come to a conclusion based on her training, only that she has seen him suffering from these symptoms. Weighing the lay testimony against the two medically trained VA examiners' reports and the silence of the rest of the medical record, the Board finds the VA examiners' reports to be the most probative evidence of record on this matter. Therefore, the second criterion is not satisfied. Finally, the objective finding of both VA examiners revealed no atrophy, no loss of muscle strength, no loss of fascia, and overall no effect on the function of the Veteran's injured muscle group, so the third criterion is not satisfied. Considering the totality of the circumstances, including the Veteran and his spouse's testimony, the Board finds that the evidence weighs against the Veteran's claim for a rating in excess of 10 percent for residuals of a gunshot wound based on his muscle injury. ii. Scars While the Veteran's gunshot wound residuals are currently rated under DC 5319 for his muscle injury, he also has a residual scar from the wounds and the resulting surgery. A higher rating of 20 percent under scar criteria may not be assigned unless there are deep and nonlinear scar(s) with an area or areas of at least 12 square inches but less than 72 square inches; or, if there are three or four scars that are unstable or painful. DCs 7801, 7804, 7805. The Veteran's medical records refer to the existence of his epigastric scar, generally noting no sequelae, but do not further describe it or address the specific area covered. No medical records note pain or instability caused by this scar. The Veteran was provided VA examinations of this scar in December 2015 and November 2016. The December 2015 VA examiner reviewed the claims file and examined the Veteran. This examiner identified one linear scar on the Veteran's front right trunk measuring 17 cm by 0.5 cm. No other scars were noted on the Veteran's trunk. The examiner did not note any complaints from the Veteran and noted no limitation of function or ability to work caused by this scar. At his July 2016 hearing the Veteran denied that the scar itself was painful but said the area around it was sometimes sensitive. He stated that his acupuncturist gave him castor oil ointment and suggested applying that and heat would help loosen it up. The November 2016 VA examiner reviewed the claims file, including the Veteran's testimony from his July 2016 hearing and examined the Veteran. This examiner identified one linear scar on the Veteran's front right trunk measuring 17 cm by 0.5 cm. It was noted to be stable, non-painful, and not losing skin covering. The examiner noted no limitation of function caused by the scar. Since the Veteran has only one scar on his abdomen, and that scar is linear, neither criterion for a higher rating is satisfied. DC 7801 requires at least one scar that is deep and non-linear. DC 7804 requires at least three scars, each of which is either painful or unstable. Therefore the Board finds that the evidence weighs against the Veteran's claim for a rating in excess of 10 percent for residuals of a gunshot wound based on his scarring. ORDER 1. Entitlement to an initial rating in excess of 10 percent for GERD is denied. 2. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound to the abdomen with scarring is denied ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs