Citation Nr: 18148554 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-27 766 DATE: November 7, 2018 ORDER Entitlement a rating in excess of 30 percent for hiatal hernia with gastroesophageal reflux disease and Barrett’s esophagus (GI disability) prior to August 14, 2017 is denied. Entitlement to a rating of 60 percent for a GI disability from August 14, 2017 is granted. Entitlement to special monthly compensation (SMC) from August 14, 2017 is granted.   FINDINGS OF FACT 1. Prior to August 14, 2017, the Veteran’s GI disability has not been productive of severe impairment of health. 2. Resolving reasonable doubt in favor of the Veteran, from August 14, 2017, the Veteran’s GI disability has been productive of severe impairment of health. 3. From August 14, 2017, the Veteran has a single service-connected disability rated as 100 percent as well as an additional service-connected disability rated at 60 percent. CONCLUSIONS OF LAW 1. Prior to August 14, 2017, the criteria for a rating in excess of 30 percent for the Veteran’s GI disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346. 2. From August 14, 2017, the criteria for a rating of 60 percent for the Veteran’s GI disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346. 3. From August 14, 2017, the criteria for SMC pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1984 to June 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim for an increased rating of the Veteran’s GI disability in January and August 2017 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In a December 2017 rating decision, the RO awarded an increased 60 percent evaluation for the Veteran’s GI disability and SMC pursuant to 38 U.S.C. § 1114(s) effective from September 28, 2017. While the RO has assigned the highest schedular rating under the rating criteria from that date, the Veteran is presumed to be seeking the maximum possible rating for the entirety of the appeal period unless he indicates otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the issue is not moot by virtue of the RO’s December 2017 rating decision. The Veteran filed a VA Form 21-0958, Notice of Disagreement (NOD), in February 2018 disagreeing with the effective date for the increased rating assigned in the December 2018 rating decision. His disagreement is subsumed by his appeal for an increased rating. Therefore, no further action is needed as to the February 2018 NOD. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s GI disability is rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346. Under DC 7346, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating 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. 1. Entitlement to a rating in excess of 30 percent prior to September 28, 2017. The Veteran seeks a rating in excess of 30 percent prior to September 28, 2017. The appeal period before the Board begins on October 20, 2010, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the reasons that follow, the Board finds that a 60 percent rating is warranted, but only from August 14, 2017. Private treatment records show that from September 30, 2011 to October 3, 2011, the Veteran was hospitalized for a gastrointestinal bleed. The Veteran complained of dark stools, nausea, and abdominal pain. Acute melena with abdominal pain was noted. The records also note that the Veteran had been using Naproxen prior to his visit. Upon discharge, the Veteran was reported as stable. The Veteran underwent a VA examination in September 2012. Signs and symptoms noted in the examination report were persistent recurrent epigastric distress; dysphagia; pyrosis; reflux; regurgitation; substernal arm or shoulder pain; and sleep disturbance caused by reflux four or more times per year, lasting less than one day. In the Veteran’s October 2012 substantive appeal, he contends that he experiences periods of reflux so severe that it causes him to regurgitate/vomit. The Veteran underwent another VA examination for his GI disability in February 2017. During the examination, the Veteran reported that he has dull pain in his epigastrium and vomits his whole meal three times per week. He also reported daily nausea and belching. The signs and symptoms noted in the examination report were substernal pain, episodes of nausea occurring four or more times per year that last less than one day, and episodes of vomiting occurring four or more times per year that last less than one day. Moreover, the examiner reported that the Veteran’s belching was not a symptom of reflux. The examiner also noted that while the Veteran reports vomiting, such is not supported by his medical records or by objective findings. The examiner further explained that the lab work completed during the examination showed no biochemical derangement consistent with frequent vomiting, and the Veteran has not had any significant weight loss. The Veteran’s VA treatment records from 2014 to June 2017 show that the Veteran has consistently denied vomiting, melena, hematemesis, and changes in weight. The Veteran has reported nausea and has intermittently reported abdominal pain. Additionally, June 2014 and August 2016 VA treatment records show the Veteran did not have any overt bleeding or blood in his stool. August 2017 VA treatment records show that the Veteran was hospitalized for an upper GI bleed on August 14, 2017. The Veteran was diagnosed with anemia and “hematemesis/melena.” Additionally, in an August 2017 statement, the Veteran reported that he was vomiting blood and had blood in his stool the night prior to writing the statement. Based on a review of the evidence of record, the Board finds that an evaluation in excess of 30 percent is not warranted prior to August 14, 2017. During that period, the Veteran’s disability has primarily manifested in symptoms such as epigastric pain, reflux, regurgitation, substernal arm or shoulder pain, and sleep impairment. Apart from sleep impairment, these symptoms are expressly contemplated by the criteria corresponding to a 30 percent rating. Additionally, while the Veteran reported sleep disturbance during his September 2012 VA examination, he did not report it at any other time during the period in question. As such, the Board finds that the minimal frequency of the symptom productive of no more than considerable impairment of health. The Board has considered whether a higher, 60 percent rating is warranted but finds that it is not. The Veteran’s disability did not manifest in the level of disability considered consistent with such a rating prior to August 14, 2017. He did not experience material weight-loss or hematemesis or melena with moderate anemia throughout the period in question. For example, he did not have material weight loss. The September 2017 VA examiner found a weight of 198 pounds with a baseline weight of 216 pounds. Earlier, in July 2017, his weight was 203.7 pounds, 205 and 204 in May 2017, and 208 in February 2017. While this represents a trend downwards, this was not a loss greater than 10 percent. See 38 C.F.R. § 4.112. The Board acknowledges the Veteran’s hospitalization in September 2011 during which he experienced melena and abdominal pain. However, as the Veteran did not experience melena or another gastrointestinal bleed between the Veteran’s September 2011 hospitalization and his August 2017 hospitalization, the Board finds that this did not result in a considerable impairment of health. As such, the Board finds that the Veteran’s September 2011 hospitalization does not warrant a higher rating. The Board also acknowledges the Veteran’s statements in his October 2012 substantive appeal and February 2017 VA examination that he experienced vomiting prior to August 14, 2017. While the Board finds Veteran’s statements competent and credible, it finds that any vomiting experienced by the Veteran was intermittent and was not productive of severe impairment of health. The Veteran consistently denied vomiting from 2014 to June 2017. Additionally, the February 2017 VA examiner noted that objective evidence, including lab results, was not consistent with frequent vomiting. Thus, the Board finds that while the Veteran might have experienced occasional vomiting, such was not productive of severe impairment of health as is contemplated by the 60 percent rating criteria. The Board also acknowledges the Veteran’s complaints of abdominal pain throughout the period in question. However, the Board finds that his complaints of abdominal pain are not productive of severe impairment of health as is contemplated by the 60 percent rating criteria, and as such, do not warrant a higher rating prior to August 14, 2017. While the Veteran complained of abdominal pain, he has not asserted, and the evidence does not show, that such abdominal pain impaired his health to a considerable degree. In a May 2014 VA treatment record, the Veteran describes the pain as “dull.” Moreover, the Veteran has denied abdominal pain in 2014 and 2017 VA treatment records. See March 2014 and May and June 2017 VA Treatment Records. To the extent the Veteran’s pain was associated with his recurrent epigastric distress, it is already considered in the criteria corresponding to the 30 percent rating. Given the foregoing, the Board finds that the Veteran’s abdominal pain did not rise to the level contemplated by a higher, 60 percent evaluation prior to August 14, 2017. However, the Board does find that a higher, 60 percent rating is warranted from August 14, 2017. The Veteran was admitted to the hospital on August 14, 2017 due to his GI disability. During the Veteran’s hospitalization, the assessment of his condition included anemia and hematemesis/melena. The Veteran later underwent a VA fee-based examination in September 2017 which found that the Veteran’s disability manifested in symptoms productive of severe impairment of health, including material weight loss, hematemesis, and melena with moderate anemia. The RO granted an increased 60 percent rating, the highest schedular rating, pursuant to the September 2017 examination. However, resolving reasonable doubt in favor of the Veteran, the evidence shows that the 60 percent disability was first manifest with the August 2017 hospitalization. As such, the Board finds that a higher, 60 percent rating is warranted from the time of his hospitalization in August 2017. A 60 percent rating is the highest schedular evaluation possible under DC 7346, and there are no other DCs that are applicable for rating the Veteran’s GI disability. In sum, prior to August 14, 2017, the Veteran’s GI disability has manifested in epigastric pain, reflux, regurgitation, substernal arm or shoulder pain, occasional vomiting, abdominal pain, and sleep impairment. The Board finds that the frequency and severity of these symptoms was productive of considerable impairment of the Veteran’s health and do not warrant a rating higher than 30 percent prior to August 14, 2017. From August 14, 2017, the Board finds that the Veteran’s GI disability manifested in symptoms productive of severe impairment of his health and warrant a higher, 60 percent rating. The Veteran was also diagnosed with Barrett’s esophagus. Most analogous, DC 7203 provides ratings for stricture of the esophagus. A minimum 30 percent rating is warranted for a moderate disability; a 50 percent rating for severe, permitting liquids only; and a maximum 80 percent where permitting passage of liquids only, with marked impairment of general health. See 38 C.F.R. § 4.114. Here, the September 2017 VA examination, consistent with the prior evidence, shows that the disability did not involve stricture. Thus, a higher rating cannot be assigned on this basis. 2. Entitlement to special monthly compensation from August 14, 2017. VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB, 6 Vet. App. at 38; see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran currently is in receipt of a 100 percent schedular rating for his service-connected unspecified depressive disorder effective June 9, 2013. As noted above, the RO awarded the Veteran SMC pursuant to 38 U.S.C. § 1114(s) when it awarded the Veteran an increased rating of 60 percent for his GI disability effective September 28, 2017. The Veteran became entitled to SMC at that time because he then had a service-connected disability independently ratable at 60 percent, separate and distinct from the 100 percent service-connected unspecified depressive disorder and involving different anatomical segments or bodily systems. As the Board has awarded a 60 percent rating for the Veteran’s GI disability from August 14, 2017, the criteria for SMC at the housebound rate were met from that date. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel