Citation Nr: 1758068 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 12-10 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a gastrointestinal/esophageal disability, claimed as acid reflux. 2. Entitlement to a rating in excess of 20 percent for mechanical low back strain, with degenerative disc disease (a low back disability). 3. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jack S. Berry, Attorney at Law ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, to include service in the Republic of Vietnam These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) regional office (RO) in Lincoln, Nebraska. These matters were previously before the Board in September 2016, at which time they were remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a rating in excess of 20 percent for mechanical low back strain, with degenerative disc disease (a low back disability) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is against a finding of a nexus between the Veteran's service-connected disabilities and a gastrointestinal/esophageal disability. 2. The evidence shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal/esophageal disability, claimed as acid reflux, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 303 (2017). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 - 514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Board notes that the Veteran is shown to have diagnoses of gastroesophageal reflux disease (GERD) and hiatal hernia; the first element of service connection - a current disability - is therefore conceded. Likewise, the Board notes that the Veteran is service connected for radiculopathy of the left lower extremity, posttraumatic stress disorder (PTSD), urinary bladder incontinence, a right shoulder condition, chronic mechanical low back strain, tinnitus, bowel leakage/incontinence, and erectile dysfunction. Thus, the second element of secondary service connection has been met in this case. Consequently, this case turns on whether the Veteran's gastrointestinal/esophageal disability is caused or aggravated by his service connected disabilities. To that end, the Veteran has asserted in his February 2011 claim that his acid reflux disability was possibly secondary to a mental health condition/PTSD. He has not alleged, nor is there evidence, that his gastrointestinal/esophageal is directly related to service; the Veteran's sole contention is that the disability is secondary to his PTSD. The record contains a May 2011 VA esophagus and hiatal hernia examination report, wherein the examiner opines that medical literature is silent as to a causative link between posttraumatic stress disorder (PTSD) and GERD. As a result, the examiner indicated that GERD was less likely as not caused by, a result of, or aggravated by PTSD The Veteran received a VA examination for his esophageal conditions in April 2012, and the examiner noted diagnoses of GERD from March 2012, hiatal hernia from 2004, and esophageal stricture from 2004. The Veteran reported indigestion and pyrosis for the last 20 years and stated he must restrict his diet. He exhibited symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, and regurgitation. As a result of the examination, the examiner opined that the Veteran's condition was less likely than not proximately due to or the result of the Veteran's service-connected conditions. He reasoned that the Veteran's urinary and PTSD medications would not cause reflux. The Veteran took ibuprofen, which the examiner admitted could cause stomach distress; however, the Veteran only took two pills, once per month, which was not enough to be contributory to his GERD. The examiner also opined that the condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The only medication the Veteran took that could aggravate his GERD was ibuprofen, and the examiner stated the frequency with which he took it was not enough to increase symptoms. The Veteran submitted medical literature from the National Center for PTSD indicating that psychological trauma was related to physical health. The literature stated that there was some evidence to indicate that PTSD was related to, amongst other things, gastrointestinal disorders. The author, however, indicated that the relationship of PTSD to the gastrointestinal system had not been extensively researched. The Veteran also submitted testimony from the Director of the National Institute of Mental Health, who stated that significant health problems were more likely to occur in individuals with PTSD than in those without the disorder, particularly hypertension, asthma, and gastrointestinal problems. The Veteran received a VA examination for his esophageal conditions in April 2015, and the Veteran reported that he had heartburn his entire life. The Veteran presented with symptoms of pyrosis, reflux, and regurgitation. As a result of the examination, the examiner indicated that there was no association found with PTSD by history or by records review. PTSD did not cause GERD associated with hiatal hernia, as the condition was caused by dysfunction of the lower esophageal sphincter. The examiner indicated that common risk factors for GERD included obesity and hiatal hernia, and both of those risk factors were present in the Veteran. The examiner further found that there was no evidence found for aggravation by history or by record review. VA provided a medical opinion in October 2016, and the examiner indicated that the contentions in the literature from the National Institute of PTSD did not specifically address a connection between GERD and PTSD and also did not provide conclusive evidence of a connection between PTSD and a gastrointestinal condition in general; the literature actually indicated that additional research was needed. The examiner also discussed the statement from the Director of the National Institute of Mental Health, and found that it did not address a connection between PTSD and GERD specifically. The statement also did not cite evidence to back up the claim. The examiner also considered the pain medications on the Veteran's VA medication list, and noted that none had hiatal hernia or reflux disease as a side effect. Although there was some reference to dyspepsia, which he noted was basically abdominal discomfort, it was not related to hiatal hernia or GERD. The examiner indicated that pain medications may cause constipation and, if not addressed, intestinal blockage and in turn nausea or vomiting, but did not cause hiatal hernia or GERD. Therefore, the examiner concluded that it was less likely than not that the Veteran's hiatal hernia was caused by or aggravated by PTSD or any medications used to treat any service connected disabilities. The Board finds the October 2016 VA examination highly probative evidence against the Veteran's claim. It is competent and credible, as the examiner provided a thorough and adequate rationale with regards to the Veteran's gastrointestinal/esophageal disability and its lack of connection to service-connected PTSD. While the Veteran has competent diagnoses of GERD and hiatal hernia, the evidence indicates that it is not related to his mental disorder or the medications that he takes for his service connected disabilities. Furthermore, the medical literature submitted the Veteran indicating a link between PTSD and GERD is of diminished probative value. While the Board finds it to be competent and credible, the literature is of diminished probative value because of the authors did not provide evidence or a rationale to support their claims. In light of the competent medical evidence indicating that the Veteran's gastrointestinal/esophageal disability is not related to his service-connected disabilities, the Board concludes that service connection is not warranted. TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's service-connected disabilities include: (i) radiculopathy of the lower left extremity (60 percent); (ii) posttraumatic stress disorder (PTSD) (50 percent); (iii) urinary bladder incontinence (40 percent); (iv) right shoulder condition (20 percent); (v) chronic mechanical low back strain (20 percent); (vi) tinnitus (10 percent); (vii) bowel leakage/incontinence (10 percent); (viii) erectile dysfunction (0 percent). The Veteran's combined rating for his service-connected disabilities was 70 percent, effective June 10, 2004; 90 percent, effective March 23, 2011; 100 percent, effective January 29, 2016; and 90 percent, effective May 31, 2016. Thus, the Veteran meets the percentage requirements for TDIU during the entire appeal period. The Veteran reported that he was self-employed in construction and did farming work. See October 2004 VA examination record. He last worked full time four years ago, and this is the same time he became too disabled to work due to his service-connected disability. His educational background includes a high school degree. However, the Veteran did not have any other education and training before or after he became too disabled to work. The Veteran received a VA examination in December 2016, and the examiner noted the functional impairment in regards to the Veteran's employment. His ability sit, stand, and walk was limited, as well as his ability to push or pull. Furthermore, the Veteran could not climb ramps or stairs, kneel, crouch, crawl, or climb ladders, ropes, or scaffolds. The examiner opined that the Veteran would be able to do sedentary functions such as sitting for very short periods of time, talking, or listening. However, those sedentary functions would be limited by his pain threshold, which had been documented as constant and severe. This, in turn, would contribute to increased absenteeism and decreased productivity. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence presented in this case, the Board finds that the evidence supports a finding that the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment effective from February 2, 2007. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). The Board finds significant that the Veteran's employment history has consistently involved substantial physical labor. The December 2016 examiner opined that the Veteran was unable to perform most physical activities. Although she stated that the Veteran could perform sedentary activities, there is no indication that the Veteran has the requisite training or experience for such occupations. More important, if he were trained for such jobs, his physical impairments are of such a degree that it would still be difficult for him to maintain gainful employment. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows he is entitled to an award of TDIU. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). ORDER Service connection for a gastrointestinal/esophageal disability, claimed as acid reflux, is denied. A total disability rating based on individual unemployability is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The Veteran received a VA examination in November 2016 and reported flare ups of the thoracolumbar spine that made it difficult to get out of bed some days. The examiner noted that the examination was not conducted during a flare up, but did not estimate the Veteran's range of motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In light of this decision, the Board finds that a new VA examination should be provided addressing the Veteran's mechanical low back strain with degenerative disc disease. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his thoracolumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all thoracolumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veterans claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs