Citation Nr: 1802161 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 225A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for nonalcoholic steatohepatitis, claimed as fatty liver. 2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) prior to May 26, 2017, and in excess of 10 percent thereafter. 3. Entitlement to an initial compensable rating for esophageal stricture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from June 1987 to July 1987 and from January 1991 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. The appellant filed a timely Notice of Disagreement (NOD), received in June 2012. A Statement of the Case (SOC) was issued in March 2014. A timely substantive appeal was received in April 2014. A Supplemental Statement of the Case (SSOC) was issued in July 2017. A May 2017 rating decision awarded a 10 percent evaluation for GERD, effective May 26, 2017. The appellant was afforded a Board hearing before the undersigned in October 2017. A transcript is of record. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the appellant's nonalcoholic steatohepatitis is causally related to his active service. 2. At his Board hearing on October 2, 2017, prior to the promulgation of a decision in the appeal, the appellant and his representative indicated that the appellant wished to withdraw his appeal with respect to the issue of entitlement to an initial compensable rating for GERD prior to May 26, 2017, and in excess of 10 percent thereafter. 3. Throughout the period on appeal, the appellant's esophageal stricture has more nearly approximated a severe stricture, permitting liquids only during flare-ups. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for nonalcoholic steatohepatitis have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for withdrawal of the appeal with respect to the claim of entitlement to an initial compensable rating for GERD prior to May 26, 2017, and in excess of 10 percent thereafter, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for an initial rating of 50 percent, but no higher, for esophageal stricture have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7203 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Analysis A. Entitlement to service connection for nonalcoholic steatohepatitis, claimed as fatty liver Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service." 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The RO denied service connection for fatty liver, hepatic steatosis, because the Adjudication Procedures Manual (M21-1MR) states that "[f]atty liver, also called hepatic steatosis, is not a disability for which [service connection] may be granted. By itself it is simply considered an abnormal laboratory finding." M21-1MR, Part III, Subpart iv, 4.I.2.n. The appellant was afforded a VA examination in December 2010. The claims file was reviewed. The examiner diagnosed the appellant as having fatty liver and observed that such was first diagnosed while he was on active duty. A fatty liver was found via ultrasound in 2010 after slightly elevated liver enzymes were found during routine lab work. In a statement received in April 2014, the appellant stated that a liver biopsy result confirmed that he had an active liver disorder, rather than a laboratory test result. He further noted that liver enzyme tests had been abnormal on many occasions over the past 10 years. He stated that this disorder significantly limits the medications he is able to take for other medical problems, including cholesterol, and was the primary factor in being denied life insurance. A January 2015 clinical note from Dr. C.M. states that the appellant was diagnosed as having nonalcoholic steatohepatitis (NASH). It was noted that a 2011 liver biopsy revealed fatty changes and lobular inflammation, although the appellant did not yet have cirrhosis of the liver. A February 2015 clinical note from Dr. C.M. states that lab results showed elevated liver enzymes. Dr. C.M. opined that fatty liver disease was causing the elevation. During his October 2017 Board hearing, the appellant testified that, because of his fatty liver, he was told never to take statin drugs again, although he had been prescribed such while on active duty. Per doctors' recommendations to lose weight, he reported losing approximately 40 pounds, going from 203 to 162. He reported experiencing a pain in his side, but denied fatigue, vomiting, and joint pain. He explained that he is not a drinker and only consumes one glass of wine or beer per month. Hepatic steatosis, or liver steatosis, is defined as "fatty liver." Dorland's Illustrated Medical Dictionary 1769 (32nd ed. 2012). Nonalcoholic steatohepatitis is defined as "an inflammatory disease of the liver of uncertain pathogenesis, histologically resembling alcoholic hepatitis but occurring in nonalcoholic patients, most often obese women with type 2 diabetes mellitus; clinically it is generally asymptomatic or mild, but fibrosis or cirrhosis may result." Id. The record establishes that the appellant was diagnosed as having a fatty liver while on active duty. The post-service record on appeal shows that his condition has continued since that time. Although the RO denied the claim on the basis that the condition is a laboratory finding and not a disability for VA compensation purposes, given the Dorland's characterization of nonalcoholic steatohepatitis as "an inflammatory disease of the liver," the Board concludes that the current disability criterion has been met. This conclusion is strengthened by VA's recognition of hepatic steatosis as a "covered illness or condition" associated with exposure contaminated water supplies at Camp Lejeune. See 38 C.F.R. § 17.400 (2017). As noted above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the evidence set forth above, such a conclusion cannot be made in this case. In other words, in weighing all of the evidence of record, the Board concludes that that the appellant's current nonalcoholic steatohepatitis is a disability which was caused by or incurred during his active service. B. Entitlement to an initial compensable rating for GERD prior to May 26, 2017, and a rating in excess of 10 percent thereafter Under applicable criteria, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal as to any or all issues involved in the appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his or her authorized representative. Id. In the present case, during his October 2017 Board hearing, the appellant and his representative indicated that the appellant wished to withdraw his appeal with respect to the issue of entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) prior to May 26, 2017, and a rating in excess of 10 percent thereafter. The Board finds that the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 20.204. Hence, there remain no allegations of fact or law for appellate consideration with respect to this claim. Under these circumstances, the issue is no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc) aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Accordingly, the Board does not have jurisdiction to review the appeal of the issue, and it is dismissed. C. Entitlement to an initial compensable rating for esophageal stricture Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Stricture of the esophagus is rated under Diagnostic Code (DC) 7203. Moderate stricture warrants a 30 percent rating. Severe stricture, permitting liquids only, warrants a 50 percent rating. A maximum 80 percent rating is warranted when stricture permits passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, DC 7203. The words "mild," "moderate," 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." See 38 C.F.R. § 4.6. In his June 2012 NOD, the appellant stated that he believed he was entitled to a 30 percent rating for moderate stricture because, in January 2012, he underwent his fourth dilation due to stricture since 2002. He contended that photographs from the dilation show the presence of a stricture. In a statement received in April 2014, the appellant stated that surgical dilation had been required on four occasions since 2002 due to choking on food caught in the esophageal stricture. Since the submission of his NOD, he had to go to the emergency room after choking on obstructed food. He stated that such incident was resolved with painkillers and muscle relaxants. He again expressed his contention that his esophageal stricture should be rated as moderate. A January 2015 clinical note from Dr. C.M. states that the appellant thought previous esophageal dilations cured him, but had continued to re-experience esophageal strictures. He does better if he eats alone and does not talk. He experiences frequent regurgitation when lying down. A February 2015 clinical note from Dr. C.M. states that esophageal biopsies were benign, "but a little worrisome." Significant inflammation was discovered, which may be due to eosinophilic esophagitis. A July 2015 clinical note from Dr. T.M.N. states that the appellant had a history of severe eosinophilic esophagitis which has required five episodes of dilation. The appellant had reported multiple episodes of food impaction and severe dysphagia requiring emergency room visits. A May 2017 clinical note from Dr. C.M. states that the appellant has undergone esophageal dilation on numerous occasions and has been placed on oral Flovent, which has helped him. Dr. C.M. noted that the appellant experienced chronic symptoms since active duty. Dr. C.M. explained that eosinophilic esophagitis was poorly understood until recently, but has been clearly implicated in dysphagia. Significant morbidity has been associated with such. During his October 2017 hearing, the appellant testified that, during his retirement physical examination, he has been asymptomatic. However, his esophageal stricture, caused by eosinophilic esophagitis, goes through cycles and increases in severity, generally during the spring and summer. He stated that he has had to undergo esophageal dilations every two to four years since 2002 as a result. He explained that, after such dilations, his esophageal sphincter does not close and he expels liquids if he bends over to tie his shoes. He reported that, when he was last treated in the emergency room, morphine was required due to the pain he experienced. He testified that, when his symptoms are at their most severe, he is limited to only consuming liquids. He stated that this generally happens for two to three months in the spring, and one in the fall. Difficulty swallowing was endorsed. He stated that even small grains of rice will stick and cause intense pain. He tries to force the grains down with water, but the water interferes with his breathing. He reported an inability to vomit at such times because his esophagus does not work. He reported that he avoids eating with others and sometimes must "disappear" for 30 to 45 minutes to deal with his symptoms. He also endorsed losing sleep and vomiting on occasion. He stated that he had been taking Flovent, an allergy medication, since 2015, which helps in the portions of the year when his symptoms are not as severe. After considering the record in its entirety, and affording the appellant the benefit of the doubt, the Board concludes that his esophageal stricture more nearly approximates a severe disability. The appellant has competently and credibly reported severe flare-ups of his esophageal stricture disability, during which he is limited to consuming liquids only. These periods of flare-ups have a duration of at least three months out of every year. The medical evidence of record, including the July 2015 statement by Dr. T.M.N. that the appellant's symptomatology is severe, supports his lay testimony. The Board observes that Dr. C.M. explained in May 2017 that eosinophilic esophagitis was poorly understood until recently. Thus, affording him the benefit of the doubt, the Board finds that the severity of the appellant's esophageal stricture more nearly approximates a 50 percent rating for the entire period on appeal. 38 C.F.R. § 4.6. An 80 percent rating is not warranted for any portion of the period on appeal because, although the appellant experiences flare-ups which only permit the passage of liquids, there is no medical or lay evidence of marked impairment of general health. The appellant and his representative have not contended otherwise. As the evidence preponderates against a rating in excess of 50 percent for any portion of the period on appeal, the benefit of the doubt doctrine is not for application to that extent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for nonalcoholic steatohepatitis is granted. The appeal as to the issue of entitlement to an initial compensable rating for GERD prior to May 26, 2017, and a rating in excess of 10 percent thereafter, is dismissed. The criteria for an initial 50 percent rating, but no higher, for esophageal stricture have been met. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs