Citation Nr: 19190885 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 12-32 839 DATE: December 3, 2019 ORDER Entitlement to a disability rating in excess of 30 percent for status post-surgery, gastroesophageal reflux, stricture of esophagus, spasm of esophagus with abdominal pain, paraesophageal hernia, status post collis-nissan fundoplication repair with paraesophageal hernia through left thoracotomy (stomach disability), is denied. Entitlement to a total disability rating based upon individual employability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s stomach disability does not cause weight loss, anemia, hematemesis, melena, or severe impairment of health. 2. The Veteran’s service-connected disabilities preclude him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for stomach disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346. 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. This case was previously remanded by the Board in October 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. After the October 2017 Board remand the RO granted service connection for scars secondary to the stomach disability on appeal and awarded initial ratings for these disabilities. Accordingly, these issues are not in appellate status and will not be addressed further here. In June 2017, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted while the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case the Veteran has asserted that his service-connected disabilities prevent him from working. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Increased rating for stomach disability The Veteran claims that his current 30 percent disability rating for his stomach disability does not reflect the severity of his symptoms. The Veteran’s service-connected stomach disability is rated under Diagnostic Code 7346. Under Diagnostic Code 7346, a 60 percent disability 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. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity. The Veteran underwent an esophageal VA examination in March 2014. The Veteran reported heartburn with certain foods. The Veteran showed signs of persistently recurrent epigastric distress occurring 4 or more times per year for a period of 1 to 9 days per episode. The Veteran showed signs of reflux occurring 4 or more times per year for a period of less than one day per episode. The Veteran showed signs of mild nausea occurring 3 times per year for a period of less than one day per episode. Material weight loss, hematemesis, or melena with moderate anemia was not shown. The Veteran’s esophageal condition did not impact his ability to work according to the examiner. The Veteran underwent an esophageal VA examination in December 2017. The Veteran reported nausea, abdominal pain, and recurrent infections in the stomach. The Veteran showed signs of reflux and substernal pain. The Veteran exhibited signs of sleep disturbance caused by esophageal reflux occurring 4 or more times per year for a period of 1 to 9 days per episode. The Veteran showed signs of transient nausea occurring 3 times per year for a period of 1 to 9 days per episode. Material weight loss, hematemesis, melena with moderate anemia, or severe impairment of health was not shown. The Veteran’s esophageal condition did not impact his ability to work according to the examiner. In a July 2019 VA treatment note the Veteran reported losing 10 pounds of weight in the prior 3 weeks. The Veteran was instructed to contact the clinic if his weight loss continued so an esophagram can be ordered. The Board observes the Veteran’s current weight is not recorded in the note, however his body mass index was 23.5, which is higher than his body mass index of 23.1 recorded in January 2017 when he weighed 151 pounds. The Board has also considered other body weights noted in the record but finds that they do not support material weight loss. VA defines “substantial weight loss” as a loss of greater than 20 percent of an individual’s baseline weight. For example, the Veteran’s weight was 158 lbs. in March 2018, 161 lbs. in May 2015,165 lbs. in September 2014, 164 lbs. in February 2011, and 158 lbs. in March 2010, The Veteran underwent an esophageal VA examination in September 2019. The Veteran reported the following symptoms: intermittent stabbing, twisting pains near epigastric region; frequent acid reflux with regurgitation and nausea; frequent burning and watery mouth; recurrent abdominal distention and cramping; irritable bowel syndrome with rotating constipation and diarrhea; recurrent GERD symptoms; and recurrent fungal infections and thrush. The Veteran had signs and symptoms including persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. The Veteran exhibited signs of sleep disturbance caused by esophageal reflux occurring 4 or more times per year for a period of 10 days or more per episode. The Veteran showed signs of nausea occurring 4 or more times per year for a period of 10 days or more per episode. Material weight loss, hematemesis, melena with moderate anemia, or severe impairment of health was not shown. The Veteran’s esophageal condition did not impact his ability to work according to the examiner. After a review of the evidence, the Board finds that for the entire rating period on appeal the Veteran’s service-connected stomach disability more nearly approximates the criteria for the currently assigned 30 percent disability evaluation under Diagnostic Code 7346. The Board finds that the Veteran does not have material weight loss, hematemesis or melena with anemia, or other symptoms productive of severe impairment of health. 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. 38 C.F.R. § 4.114 expressly prohibits, in pertinent part, the combination of ratings under DCs 7301 to 7329, inclusive, and 7345 to 7348 inclusive. The Board finds that the Veteran’s predominant disability picture is best reflected under DC 7346, and that the severity of the overall disability does not warrant elevation to a higher rating. His picture is not more accurately reflected under another diagnostic code because he does not have symptoms such as daily fatigue, malaise and anorexia causing incapacitating episodes, disabling attacks, or severe malnutrition due to his service-connected disability. In sum, the Board finds that an increased rating is not warranted. The evidence is against a finding that the Veteran’s disability has manifested in material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a TDIU is granted The issue of entitlement to a TDIU was raised by record, because the Veteran's testimony and treatment records indicate that the Veteran's service-connected disabilities have prevented him from securing and maintaining substantially gainful employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16. The Veteran has been granted service connection for major depression, rated 70 percent disabling from December 2015 and 50 percent disabling from April 2014; stomach disability, rated 30 percent disabling from October 1990; left shoulder disability, rated 20 percent disabling from June 2010; residual scars, rated 20 percent from September 2019; hemorrhoids, rated 10 percent from March 2009. He is also service-connected disabilities of scars, chronic obstructive pulmonary disease, all rated noncompensable (0 percent disabling). In order to meet the schedular criteria for TDIU, the Veteran must either manifest a single disability rating that is at least as 60 percent disabling or a disability rating that is at least 40 percent disabling and a combined disability rating of 70 percent. 38 C.F.R. § 4.16. The Veteran has been assigned a single disability rating that is at least 40 percent disabling; and the Veteran has been assigned a combined disability rating of at least 70 percent since April 2, 2014. Therefore, the Veteran meets the schedular criteria for a TDIU from April 2, 2014. For the reasons discussed below, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities are of sufficient severity to render him unable to follow a substantially gainful occupation. In a July 2009 Application for Increased Compensation Based on Unemployability the Veteran reported he last worked in 1997. The Veteran stated his service-connected stomach disability prevented him from working. The Veteran reported working from 1990 to 1997 as a self-employed pawn broker. The Veteran reported 2 years of college education. During a December 2015 VA PTSD examination the examiner found that the Veteran’s service-connected major depressive disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran has low motivation and ambition for work. The examiner noted the Veteran’s depressive disorder caused symptoms including the following: depressed mood, anxiety, panic attacks weekly or less often, near continuous panic or depression, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, difficulty adapting to stressful circumstances-including work or a work-like setting. The examiner also noted symptoms of neglect of personal appearance and hygiene, and disorientation to time or place. An October 2017 VA examiner stated the Veteran’s service-connected chronic obstructive pulmonary disease requires daily inhaled steroids to control his symptoms of cough, fatigue, and dyspnea. Walking more than 10 minutes or ascending a flight of stairs caused the Veteran dyspnea. During a December 2017 VA Scars examination, the examiner stated that the Veteran’s service-connected scars prevented the Veteran from lifting more than 5 to 10 pounds. During the September 2019 VA esophageal examination, the examiner stated the Veteran’s esophageal condition did not affect the Veteran’s ability to work. However, the Board observes this examiner reported the Veteran suffered from 4 or more episodes of sleep disturbance lasting 10 days or more, which at a minimum, is 40 days of sleep disturbance per year solely based upon the Veteran’s service-connected esophagal disability, as well as other signs and symptoms including persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain Considering VA examination reports and the Veteran’s limited work and educational history, the Board finds after considering the entire record and resolving reasonable doubt in favor of the Veteran, the claim for a TDIU should be granted. The probative evidence of record reasonably shows that the combined effect of the Veteran’s service-connected disabilities precludes him from securing or maintaining a substantially gainful occupation consistent with his work history and education. (Continued on the next page)   The Board resolves reasonable doubt in favor of the Veteran and finds that the evidence shows he is entitled to an award of a TDIU based on his service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran’s claim for entitlement to a TDIU is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.