Citation Nr: 1801968 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-11 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent for eosinophilic esophagitis, for the period prior to February 27, 2015. 2. Entitlement to a disability rating higher than 30 percent for eosinophilic esophagitis, for the period from February 27, 2015. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to February 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which clarified that the Veteran's service-connected connected disability of gastroesophageal reflux disease (GERD) was really eosinophilic esophagitis, and assigned a 10 percent disability rating for the disability, effective August 16, 2010, the original effective date for the award of service connection for GERD. In a March 2015 rating decision, during the pendency of the appeal, the RO increased the disability rating for eosinophilic esophagitis to 30 percent, effective February 27, 2015. This created a staged rating, as indicated on the title page. The Board remanded the claim on appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development in January 2017. FINDING OF FACT 1. The evidence is at least evenly balanced as to whether, throughout the pendency of the claim, the Veteran's eosinophilic esophagitis more nearly approximated persistent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. 2. Throughout the appeal period, the symptoms associated with the Veteran's eosinophilic esophagitis did not more nearly approximate symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for eosinophilic esophagitis have been met for the part of the appeal period prior to February 27, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, Diagnostic Code (DC) 7346 (2017). 2. The criteria for a disability rating higher than 30 percent for eosinophilic esophagitis were not met at any point during the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran in December 2010 and January 2013, before service connection was granted for the claim. VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matters decided herein has been obtained. The AOJ has obtained the Veteran's VA treatment records and private medical records, to the extent possible. Although the Veteran reported having received private treatment for the claimed disability on appeal from a Dr. B. Sherlip, correspondence received from Dr. Sherlip's office indicated that no records were found for the Veteran. The Veteran has been afforded adequate VA examinations for the claimed disability on appeal, as indicated in the discussion below. There is no indication that additional evidence is available or required for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is to be considered when making disability evaluations. See, generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 26 (1999); A claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The rule against pyramiding prohibits compensating a Veteran twice for the same symptoms, regardless of diagnosis 38 C.F.R. § 4.14 (2017). The test for whether separate ratings would be pyramiding is where there is an overlapping or duplication of symptomatology for the multiple ratings. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Disabilities involving the digestive system are evaluated under the regulatory criteria found at 38 C.F.R. §§ 4.110-4.114 (2017). The Veteran's service-connected eosinophilic esophagitis has been rated under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7399-7346 for hiatal hernia. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, Diagnostic Code 7399 is used to identify digestive disabilities that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. The assignment of Diagnostic Code 7346 shows that the Veteran's service-connected eosinophilic esophagitis is rated as analogous to hiatal hernia. Under Diagnostic Code 7346, a 10 percent evaluation is assigned when there is evidence of two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is assigned when there is evidence of persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. VA and private treatment records dated throughout the appeal period note the Veteran continual complaints involving the digestive system. A May 2010 private report from Springfield Medical Associates, dated just before commencement of the appeal period, noted symptoms consisting of intermittent dysphagia, mostly to solid foods, and noted that biopsies of the mid-esophagus were consistent with eosinophilic esophagitis. During VA examination in June 2011, the Veteran reported symptoms of heartburn and progressively more and more food intolerances; including to bagels, coffee, tomatoes, chocolate, spicy foods, donuts, and more, which all caused a burning discomfort in the mid-chest region. She reported dysphagia, in that sometimes she felt like food was sticking in her esophagus. She indicated that first-thing in the morning, she would cough up a thick, foul-tasting fluid that she believed came from her stomach. This would sometimes cause retching, but generally she did not vomit. Her symptoms did not cause abdominal pain. The examiner noted that the Veteran had frequent dysphagia occurring at least weekly, daily pyrosis or heartburn, and daily regurgitation. There was no history of hematemesis or melena, and no history of esophageal dilation. In a December 2011 VA examination report, the Veteran's symptoms were noted to only be pyrosis, reflux, and persistently recurring epigastric distress. In multiple statements, including a statement received in December 2011, and in her March 2013 notice of disagreement, and her March 2014 substantive appeal, on VA Form 9, the Veteran reiterated the symptoms associated with her eosinophilic esophagitis. She attested as to having chest pain with a burning sensation, recurrent dysphagia, which was at time very painful, pyrosis, nausea, bloating, and she reported symptoms of regurgitation. She additionally attested to having many difficulties associated with her condition, such as having regurgitation of water and food at times, even in public, and having to quickly enter a restroom in order to induce vomiting, to remove the food from her esophagus. During a September 2013 VA otolaryngology consultation, the VA physician noted that since the time of her first pregnancy, the Veteran had had a 12 year history of severe constant heartburn, regurgitation, globus sensation, and dysphagia for solids, which had worsened since. The physician additionally noted that she had the urge to cough up phlegm, sometimes with blood. She additionally felt nauseous frequently, as if she had to cough something up. A June 2015 primary care report noted that the Veteran apparently had a stricture of the esophagus and that the esophagus had to be dilated in order to perform an endoscopy. Subsequent February 2015 and February 2017 VA examination reports noted the Veteran's same ongoing symptoms including substernal pain, and noted that she had sleep disturbance four or more times per year caused by esophageal reflux. The examiners assessed that the Veteran's symptoms were productive of considerable impairment of health. The February 2017 VA examination report noted the Veteran's esophageal stricture, and indicate that the stricture was moderate and amenable to dilation. In March 2015 and June 2017 statements, the Veteran reiterated that she had continued epigastric symptoms for many years, ever since her pregnancy in 2001. She reiterated her multiple epigastric symptoms and also reported that she even had anemia. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's symptoms more closely approximate a 30 percent disability rating for the entire appeal period. Specifically, the medical and competent lay evidence of record reflects that the Veteran's eosinophilic esophagitis has resulted in persistent epigastric distress, with symptoms including dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, and substernal pain. She has additionally experienced nausea, and has recurrent coughing up of phlegm and a foul tasting liquid. Although it appears that the Veteran's symptoms have increased somewhat in severity over time, her symptoms have at least been consistent with the criteria for a 30 percent rating throughout the appeal period. The Veteran has also asserted that these symptoms have been present for more than 12 years, thus, at least throughout the entirety of the appeal period. The symptoms and overall disability rating do not, however, more nearly approximate the criteria for a 60 percent rating. The VA examination reports, including the most recent February 2017 report, and private and VA treatment reports have indicated that the Veteran's eosinophilic esophagitis did not result in anemia, weight loss, hematemesis, or melena. While the Veteran has reported occasional coughing up of blood, there is no indication that she has had hematemesis. Additionally, while she has experienced infrequent vomiting, often forced to help deal with an episode of dysphagia, and although she reported in a June 2017 statement that her symptoms had even resulted in anemia, the evidence of record does not show that such anemia was moderate, and there is no evidence that it has been accompanied by material weight loss, hematemesis, or melena. Thus, the evidence does not reflect that the Veteran's eosinophilic esophagitis includes symptoms of productive of severe impairment of health. Therefore, the criteria for a 60 percent disability rating have not been met. The Board has considered whether staged ratings are appropriate, however, as noted, while the Veteran's symptoms appear to have somewhat increased in severity throughout the appeal period, her symptoms have been consistent with the criteria for a 30 percent rating during the course of this appeal. As such, a staged rating is not warranted. The Board has also considered whether a separate rating for stricture of the esophagus is warranted. See 38 C.F.R. § 4.114, DC 7203. Under the rating criteria for such stricture, a 30 percent rating would be warranted for the Veteran's moderate esophageal stricture. See id. Notably, however, 38 C.F.R. § 4.114 generally provides that a single evaluation is to be assigned under the diagnostic code which reflects the predominant disability picture. Moreover, as symptoms associated with the Veteran's esophageal stricture (e.g., dysphagia) are contemplated by the 30 percent disability rating assigned under Diagnostic Code 7346, to assign an additional rating for such esophageal stricture would constitute pyramiding. See 38 C.F.R. § 4.14. The Veteran has also been awarded service connection for chronic laryngitis, as secondary to her eosinophilic esophagitis. The Board has considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show that the symptoms associated with the Veteran's eosinophilic esophagitis present an exceptional disability picture. Comparison between her symptoms (dysphagia, pyrosis, regurgitation, globus sensation, occasional vomiting, occasional coughing up blood and a foul tasting liquid, and substernal pain), and the criteria found in the rating schedule shows that the rating criteria reasonably describe her disability level and symptomatology during the appeal period. Thus, the Board need not consider whether the disability have caused marked interference with employment during the appeal period. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. A total rating based on individual unemployability (TDIU) due to service-connected disability is a potential part of a rating claim when such claim is expressly raised by a claimant or reasonably raised by the record. The Veteran reported in her March 2014 VA Form 9 that her disability impacted her employment in that sometimes her voice was raspy such that her supervisor would have to field her customer service calls. There is no indication, however, that her eosinophilic esophagitis has rendered her unemployable. The evidence indicates that the Veteran's usual occupation is an accountant, and the July 2011, December 2011, February 2015 and February 2017 VA examination reports have all indicated that the Veteran's eosinophilic esophagitis did not impact her ability to work. Thus, the Board finds that the issue of entitlement to a TDIU has not been raised by the record pursuant to Rice v. Shinseki, 22 Vet. .App. 447 (2009). Resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent disability rating is warranted for eosinophilic esophagitis for the part of the appeal period prior to February 27, 2015. As the preponderance of the evidence, however, is against the assignment of a disability rating higher than 30 percent for eosinophilic esophagitis for any part of the appeal period, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected eosinophilic esophagitis is granted for the period prior to 27, 2015, subject to controlling regulations governing the payment of monetary awards. Entitlement to a disability rating higher than 30 percent for any part of the appeal period is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs