Citation Nr: 18161079 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-39 909 DATE: December 28, 2018 ORDER A compensable rating for bilateral hearing loss is dismissed. An initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. On October 3, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of the bilateral hearing loss appeal was requested. 2. The evidence of record shows that during the period on appeal, the Veteran’s PTSD manifested with occupational and social impairment with deficiencies in most areas. 3. The Veteran’s GERD is productive of symptoms that include dysphagia, pyrosis, reflux, and regurgitation, weight loss, and shoulder pain, but they are of less severity than that contemplated by the higher criteria and do not result in considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to a compensable rating for bilateral hearing loss have been met and the issue is dismissed. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an increased rating for GERD, evaluated as 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.114, Code 7304-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2000 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and August 2016 rating decisions. The issues were previously before the Board in May 2018, at which time the issues were remanded for further development. The Veteran’s representative contends that the May 2018 VA examiner for GERD did not adhere to the Board’s remand instructions because the examiner did not review the claims file. The VA examination report reflects that the examiner obtained an oral history from the Veteran and conducted a medical evaluation. The examiner documented the Veteran’s reported symptoms, the results of the clinical examination, and functional impact. When analyzing claims for an increased disability rating, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The examiner was aware of the pertinent history of the Veteran’s GERD based on the Veteran’s statements during the examination. Accordingly, the VA examination is adequate for rating purposes. 1. A compensable rating for bilateral hearing loss The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, withdrew the issue of entitlement to a compensable rating for bilateral hearing loss. See 10/03/2018 Third Party Correspondence (stating that the Veteran “wishes to drop pursuit of a compensable rating in excess of 0% for bilateral hearing loss at this time”). There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. Increased Ratings Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510(2007). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 2. An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) The Veteran seeks an initial rating in excess of 50 percent. A 50-percent evaluation will be assigned for a mental disorder which produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9434, 9411. A 70-percent evaluation applies when a veteran’s occupational and social impairment reflects deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the General Rating Schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nonetheless, the Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the “symptom-driven nature” of the General Rating Formula. The Federal Circuit observed that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (emphasis added). The Federal Circuit explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). After review of the relevant medical and lay evidence, the Board finds that that a rating in excess of 70 percent is not warranted. The Veteran was afforded a VA examination in July 28,2016. His reported symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. Upon examination, he showed good grooming, good general hygiene, a cooperative manner, and a depressed and restricted affect. He reported being married three times and having four children. He worked in loss prevention and supervised four other individuals. The examiner indicated the Veterans symptoms manifested in occupational and social impairment with reduced reliability and productivity. VA treatment records from June 2015 to May 2018 showed the Veteran had marital issues and was in close contact with his children. He cared for his young son and was still part of his care after he moved to his own place as he went through a divorce. During this time, he left his job as a VA police officer and relocated to become a loss prevention manager with the support of his wife. He then lost his job due to cost cutting measures and accepted employment as a security guard. He then pursued employment at the VA again. He indicated that he came close to getting another job, but felt that his last supervisor was giving negative recommendations. Throughout this period, he was consistently found to be well groomed and within normal limits. A May 2018 VA examination documented symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon examination, he was well groomed, dressed casually and appropriately, and cooperative. Attention, concentration, and memory were adequate for the purposes of this evaluation. He reported that recently he had divorced and his mother passed away. He had contact with his four children. He also indicated that he did not have friends outside of acquaintances at work. He continued to work full time in security. He indicated that he was let go from his job due to a training requirement of having to do drills using rubber bullets that reminded him of traumatic events he experienced. He participated in online course work focusing on child psychology. The VA examiner concluded that his symptoms manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In light of the above, the Board finds that the Veteran’s impairment due to his symptomatology more nearly approximated the next-higher 70-percent rating. 38 C.F.R. §§ 3.400, 4.1, 4.10, 4.130, DC 9411. However, the Board finds that the signs and symptoms associated with his service-connected PTSD do not more nearly approximate total social impairment. In this regard, the Veteran reported being very close to his mother before her death and was in consistent contact with his children that did not live with him. He also cared for his youngest son that did live with him and maintained the relationship after separating/divorcing from his wife. The record also reflects that he basically maintained employment throughout the rating period. Before he was dismissed for cost cutting measures from his loss prevention position, he supervised four individuals. Additionally, he was enrolled in coursework to obtain a bachelor’s degree. The Board finds that such evidence shows deficiencies in most areas, but not total social and occupational impairment. Indeed, treatment records show that he had marital issues throughout the period and divorced. The Board finds such evidence tends to support a severity indicative of a deficiency in family relations, but not total social impairment. Regarding employment, treatment records show that the Veteran left his VA police officer position of his own volition, while he later reported being fired for not being able to go through training. The Board gives more weight to contemporaneous information that the Veteran provided at the time than his later statements made in furtherance of his increased rating claim. In any case, the Board finds this evidence supports a work deficiency, but not total occupational impairment. In sum, given the frequency, nature, and duration of the social impairment symptoms, the Board finds that they are more nearly approximated by occupational and social impairment with deficiencies in most areas. The totality of the evidence shows that the disability picture for the Veteran’s PTSD warrants an initial 70 percent rating for the period on appeal. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3 3. A rating in excess of 10 percent for gastroesophageal reflux disease (GERD) The Veteran’s disability is currently rated 10 percent under 38 C.F.R. § 4.114, DC 7304-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. Under diagnostic code 7304/7305 (ulcers), a 10 percent disability rating is warranted if the symptoms are mild and accompanied with recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate recurring episodes of severe symptoms two or three times a year averaging ten days in duration, or with continuous moderate manifestations. A 40 percent disability rating is warranted for moderately severe; that is, it is less than severe (warranting a 60 percent rating) but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. A maximum 60 percent disability rating is warranted for severe symptoms characterized as including pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena; and accompanied with manifestations of anemia and weight loss productive of definite impairment of health. Under Diagnostic Code 7346 a 10 percent rating is applicable to conditions with two or more of the symptoms listed in the 30 percent criteria of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Finally, the maximum, 60 percent disability rating requires pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. This regulation instructs that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. At a VA examination in February 2012, the Veteran reported that he was on daily medication (since December 2011) and that he did not notice any benefits from taking the medication. His symptoms included pyrosis, reflux, and sleep disturbances of less than one day, four or more time per year. He had never had an upper endoscopy done. The report reflected no functional impact on the Veteran’s ability to work from his esophageal conditions. An upper endoscopy in October 2012 did not show any significant abnormality. The Veteran was afforded another VA examination in July 2014. His symptoms included dysphagia, reflux, and bilateral pain in his shoulders. He had sleep disturbance of less than a day, four or more times per year. Material weight loss was noted. He had flare-ups approximately three times per month which required medication to control it. His symptoms were aggravated by stress or emotions. He has not esophageal stricture. The examiner found that his symptoms did not have a functional impact. At an annual health evaluation in May 2016, the Veteran’s GERD was noted to be stable. He did not have dysphagia, heartburn, nausea, or vomiting. In March 2017, he complained of heartburn with pain in his left shoulder, esophagus, and stomach. He reported that his main symptom was acid indigestion. When the symptoms got bad, he raised the head of his bed 30 degrees. He also indicated that his symptoms were not persistent. Some months he had no problems and others he had symptoms three times a week. At his VA examination in May 2018, the symptom of regurgitation was noted. He continued to take medication. There was no abdominal pain upon examination. No persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, pain, sleep disturbance, or melena were noted. He also had no history of melena or colitis. He had no esophageal stricture. No functional impact was noted. The examiner stated that the Veteran’s service-connected condition was in remission. The Board acknowledges the Veteran’s argument that the May 2018 VA examination is inadequate because the VA examiner allegedly did not do any medical examination and his medical check lasted less than five minutes. However, the VA examiner performed a medical examination showing the objective severity of the Veteran’s level functional impairment of his GERD, to include his reported symptoms and medication. The examination report also shows that laboratory testing was performed. The May 2018 VA examiner provided sufficient information such that the Board to render an informed determination as to the functional impairments due to the Veteran’s GERD disability at that time. The Board also notes that the May 2018 VA examiner noted the Veteran’s reports of a worsening condition and physically examined him, including his abdomen. For these reasons, the Board finds that the May 2018 VA examination is not rendered inadequate. Based on the competent and probative lay and medical evidence, the Board finds that an initial rating in excess of 10 percent for GERD is not warranted. The evidence does not demonstrate persistently recurrent epigastric distress, or that GERD-related symptoms result in considerable impairment of the Veteran’s health during the period on appeal. The Board recognizes the Veteran’s report of experiencing reflux, regurgitation, some shoulder pain, dysphagia, and sleep disturbance due to GERD, but finds that these symptoms are contemplated by the 10 percent rating, which is assigned for two or more symptoms under the 30 percent rating of less severity. In other words, the Board finds that the Veteran’s GERD-related symptoms do not result in considerable impairment of his health. The Board also notes that the July 2014 VA examination noted material weight loss, but there is no evidence of hematemesis, melena, or anemia. Based on these factors, the Board finds that a higher rating under DC 7304 is not warranted as there was no recurring episodes of severe symptoms two or continuous moderate manifestations. As noted earlier, the evidence of record shows that the Veteran’s GERD symptoms, while significant, are not continuous or productive of considerable of impairment of health. In this regard, the 2012, 2014, and 2018 VA examination reports reflect no functional impact from the esophageal conditions on the Veteran’s ability to work. Hence, a higher rating than 10 percent under the rating criteria is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel