Citation Nr: 1807718 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-27 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating (or evaluation) in excess of 20 percent for service-connected ventral hernia. 2. Entitlement to an increased disability rating (or evaluation) for service-connected irritable bowel syndrome (IBS), with gastroesophageal reflux disease (GERD) and hiatal hernia, in excess of 30 percent prior to September 21, 2015, and in excess of 60 percent thereafter. 2. Entitlement to an effective date prior to October 21, 2011 for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney-at-Law ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from August 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board also remanded the issues of a higher initial rating for esophageal stricture, and an earlier effective date for the grant of service connection for an esophageal stricture, to provide the Veteran a Statement of the Case. Pursuant to the February 2015 Board Remand, in April 2016, the Veteran was provided a Statement of the Case as to the issues of a higher initial rating for esophageal stricture, and an earlier effective date for the grant of service connection for an esophageal stricture. The Veteran did not perfect the appeal with a timely Substantive Appeal; therefore, these issues are not in appellate status, and are not before the Board. The issue of an effective date prior to October 21, 2011 for the grant of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire initial rating period, the residuals of a ventral hernia include a small, healed ventral hernia and post-operative wounds with weakening of the abdominal wall and indication for a supporting belt; it does not include a large, post-operative ventral hernia that is not well-supported by belt under ordinary circumstances. 2. Prior to September 21, 2015, the IBS with GERD and hiatal hernia has been manifested by persistent recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, vomiting, substernal arm and shoulder pain, and nausea, and is productive of considerable impairment of health; it is not manifested by material weight loss, or hematemesis or melena with moderate anemia, and is not productive of severe impairment of health. 3. From September 21, 2015, the IBS with GERD and hiatal hernia are assigned a 60 percent disability rating, which is the maximum schedular rating under Diagnostic Code 7346. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for a ventral hernia have not been met or more nearly approximated for the entire initial rating period. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7339 (2017). 2. Prior to September 21, 2015, the criteria for an increased disability rating in excess of 30 percent for IBS with GERD and hiatal hernia have not been met or more nearly approximated at any time during the increased rating period. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346 (2017). 3. From September 21, 2015, forward, the criteria for an increased disability rating in excess of 60 percent for IBS with GERD and hiatal hernia have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor the 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 duty to assist argument). Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as to the issue of a higher initial rating for ventral hernia, the Board will evaluate the issue as an appeal for a higher evaluation of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. Similarly, as to the appeal of an increased rating for IBS, with GERD and hiatal hernia, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as to the issues on appeal. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The service-connected ventral hernia is rated at 20 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7339. Under Diagnostic Code 7339, pertinent in this case, a 20 percent rating is warranted for a small postoperative ventral hernia which is not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wound with weakening of the abdominal wall and indications for a supporting belt. A 40 percent rating is warranted for a large postoperative ventral hernia which is not well supported by belt under ordinary conditions. 38 C.F.R. § 4.114, Diagnostic Code 7339. The Veteran is in receipt of a 30 percent disability rating prior to September 21, 2015, and in excess of 60 percent thereafter, for IBS with GERD and hiatal hernia under 38 C.F.R. § 4.114, Diagnostic Code 7346 (hernia hiatal). GERD is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). The Board finds that GERD is most closely analogous to a hiatal hernia (Diagnostic Code 7346) in terms of symptomatology and resulting disability picture. Under Diagnostic Code 7346, in pertinent part, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, which is productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. Also, in this regard, the Board finds that rating the Veteran's IBS with GERD and hiatal hernia under Diagnostic Code 7346 is most favorable given that a 30 percent rating is the maximum allowable schedular rating under Diagnostic Code 7319 for irritable colon syndrome, and given that the predominant disability picture for the IBS with GERD and hiatal hernia is reflected by the criteria under Diagnostic Code 7346. 38 C.F.R. § 4.114. Weight loss is a consideration in evaluating digestive system disorders. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. Id. Initial Rating for Ventral Hernia Having carefully considered the lay and medical evidence of record, the Board finds that the ventral hernia more nearly approximates a healed ventral hernia and post-operative wounds with weakening of the abdominal wall and indication for a supporting belt. In a December 2010 VA examination, the VA examiner indicated that x-ray results revealed a stable appearing ventral hernia along the midline just above the level of the umbilicus. The Veteran underwent another VA examination in January 2013. Upon physical examination, the VA examiner indicated that the Veteran had a small ventral hernia, and healed postoperative wounds with weakening of abdominal wall. The VA examiner also noted that there an indication for a supporting belt and that the hernia can be well supported by truss or belt. In September 2015, the Veteran was afforded another VA examination. At that time, the VA examiner indicated that the Veteran had a small ventral hernia. There was also an indication for a supporting belt, and that the hernia can be well supported by truss or belt. The Board has also reviewed the Veteran's voluminous VA treatment records. These records do not reveal a large, postoperative ventral hernia, not well supported by belt under ordinary conditions, to warrant a disability rating of 40 percent under Diagnostic Code 7339. In short, the evidence of record, to include VA examination reports and VA treatment records, does not demonstrate a ventral hernia that is a large, postoperative ventral hernia, which is not well supported by belt under ordinary conditions. For these reasons, the Board finds that, for the entire initial rating period, the criteria for a schedular rating under Diagnostic Code 7339 in excess of 20 percent for a ventral hernia have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7339. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Increased Rating for IBS, with GERD and Hiatal Hernia Pertinent in this case, in the March 2011 rating decision on appeal, the RO denied an increased disability rating for the service-connected IBS with GERD and hiatal hernia, and continued the 30 percent disability rating. In a March 2016 rating decision, the RO increased the disability rating to 60 percent, effective September 21, 2015, the date of the VA examination. The Veteran contends that, for the period prior to September 21, 2015, the symptomatology associated with the service-connected IBS with GERD and hiatal hernia is consistent with the more serious symptoms reflected in the 60 percent rating awarded from September 21, 2015. After a review of all the evidence, lay and medical, the Board finds that, for the increased rating period prior to September 21, 2015, the Veteran's IBS with GERD and hiatal hernia has been manifested by persistent recurrent epigastric distress with dysphagia, pyrosis, reflux, regurgitation, vomiting, substernal arm and shoulder pain, and nausea, and is productive of considerable impairment of health, and more nearly approximates the criteria for a 30 percent disability rating under Diagnostic Code 7346. 38 C.F.R. §§ 4.3, 4.7, 4.114. In a December 2010 VA examination report, the VA examiner indicated that the Veteran had a history of nausea and vomiting, but there were no episodes of hematemesis or melena, and no signs of significant weight loss or malnutrition. During an August 2011 VA examination, the VA examiner noted a history of heartburn and regurgitation, but no hematemesis or melena. The VA examiner also indicated that there was no weight change. The Veteran underwent another VA examination in March 2012. At that time, the VA examiner indicated that the Veteran had infrequent episodes of epigastric distress, dysphagia, reflux, regurgitation, substernal arm or shoulder pain, nausea, and vomiting. Significantly, the VA examiner explicitly indicated that the Veteran did not have hematemesis or melena by omitting an "x" next to those listed symptoms. In a January 2013 VA examination report, the VA examiner noted that the Veteran had symptoms of dysphagia, pyrosis, reflux, regurgitation, sleep disturbance, vomiting, and nausea. Again, the VA examiner explicitly indicated that the Veteran did not have hematemesis or melena by omitting an "x" next to those listed symptoms. The VA examiner also indicated that the Veteran demonstrated weight loss with a baseline weight of 152 pounds and a current weight of 145 pounds. In this regard, the Board does not find that this represents "material" weight loss, as included in the criteria for a higher 60 percent disability rating under Diagnostic Code 7346. As discussed above, "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. Here, the Veteran did not lose greater than 30 pounds (or 20 percent) of the baseline weight of 152 pounds. Indeed, the weight loss of 7 pounds (from 152 pounds to 145 pounds) does not even reflect "minor weight loss," or 10 to 20 percent of the baseline weight. In short, the criterion of material weight loss for the 60 percent rating under Diagnostic Code 7346 is not met. Here, the Board has also reviewed the Veteran's copious VA treatment records. None of these records (prior to September 21, 2015) reveal material weight loss, or hematemesis or melena with moderate anemia. Specifically, in a March 2009 VA treatment record, the Veteran denied weight loss. In June 2011, December 2012, June 2013, and March 2014 VA treatment records, the Veteran's weight was stable, and he denied having melena and hematemesis. Significantly, prior to September 21 2015, the Veteran's VA treatment records, including the VA examinations, do not reveal that the Veteran's IBS with GERD and hiatal hernia resulted in material weight loss, hematemesis or melena with moderate anemia, productive of severe impairment of health. While the Veteran did demonstrate vomiting (a criterion for a 60 percent disability rating), the totality of the evidence does not more nearly approximate the criteria for a 60 percent rating for the IBS with GERD and hiatal hernia. To the extent that the Veteran's representative noted that the Veteran had more severe symptoms, such as vomiting and hematemesis, in December 1992, January 1993, and April 2002, these reports are not within the applicable appeal period. As explained above, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. Here, the relevant evidence that is considered in the increased rating appeal adjudicated herein includes the time period from August 5, 2009, forward, one year before the Veteran submitted the increased rating claim on August 5, 2010. Based on the above, the Board finds that the weight of the lay and medical evidence of record demonstrates that the criteria for a disability rating in excess of 30 percent have not been met or nearly approximated for any part of the increased rating period prior to September 21, 2015. The weight of the evidence of record reflects that the symptoms of IBS with GERD and hiatal hernia do not include material weight loss, hematemesis or melena with moderate anemia. In the absence of this gastrointestinal symptomatology, or other symptom combinations productive of severe impairment of health, a rating in excess of 30 percent is not warranted at any point during the increased rating period prior to September 21, 2015. The Board does not find evidence that the rating assigned for the IBS with GERD and hiatal hernia should be higher for any other separate period based on the facts found during the increased rating appeal period prior to September 21, 2015. Instead, the evidence of record supports the conclusion that the Veteran is not entitled to additional compensation during any time within the period on appeal. For these reasons, the Board finds that a preponderance of the evidence is against an increased rating in excess of 30 percent for IBS with GERD and hiatal hernia for the entire increased appeal period prior to September 21, 2015. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A 60 percent disability rating represents the maximum schedular evaluation available under the schedular criteria of Diagnostic Code 7346. For the appeal period from September 21, 2015, forward, the Veteran is receiving the maximum allowable schedular disability rating under Diagnostic Code 7346; therefore, a higher schedular rating for the service-connected IBS with GERD and hiatal hernia may not be granted under Diagnostic Code 7346. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Additionally, the Board finds no other applicable diagnostic codes which would afford the Veteran a higher disability evaluation for either period on appeal. See Schafrath, 1 Vet. App. at 589. Accordingly, the appeal for increased disability ratings pursuant to Diagnostic Code 7346 is not warranted for the entire appeal period. Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial disability rating in excess of 20 percent for service-connected ventral hernia is denied. An increased disability rating for service-connected IBS, with GERD and hiatal hernia, in excess of 30 percent prior to September 21, 2015, and in excess of 60 percent thereafter, is denied. REMAND In a March 2016 rating decision, in pertinent part, the RO awarded entitlement to a TDIU, effective January 14, 2013. In an April 2016 rating decision, the RO awarded an earlier effective date for the grant of entitlement to a TDIU, dated October 21, 2011. In a July 2016 Notice of Disagreement, via VA Form 21-0958, the Veteran expressed disagreement with the April 2016 rating decision, specifically, the effective date of the award of entitlement to a TDIU. The appeal of an effective date prior to October 21, 2011 for the grant of a TDIU must be remanded to allow the RO to provide a Statement of the Case on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, the issue will be returned to the Board after issuance of the Statement of the Case only if perfected by the filing of a timely Substantive Appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the issue of an effective date prior to October 21, 2011 for the grant of a TDIU is REMANDED for the following action: Provide a Statement of the Case as to the issue of an effective date prior to October 21, 2011 for the grant of a TDIU. The Veteran must file a timely and adequate Substantive Appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (2017). If a timely Substantive Appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (West 2012). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs