Citation Nr: 19123788 Decision Date: 04/01/19 Archive Date: 03/29/19 DOCKET NO. 12-13 931 DATE: April 1, 2019 ORDER The appeal on the claim of entitlement to service connection for irritable bowel syndrome (IBS) is dismissed. Entitlement to a higher initial rating for gastroesophageal reflux disease (GERD), currently evaluated at 10 percent, is granted. REMANDED 1. Issue of entitlement to service connection for sleep apnea, to include as secondary to service connected disabilities is remanded. 2. Issue of entitlement to a higher rating for gout, currently evaluated as 20 percent disabling from April 30, 2010, and 40 percent from November 15, 2016, is remanded. FINDING OF FACT 1. The January 2017 rating decision granted the Veteran’s claim of entitlement to service connection for IBS. 2. In resolving all reasonable doubt in the Veteran’s favor, his GERD has manifested with symptoms of persistently recurrent epigastric distress, reflux, regurgitation, substernal pain, sleep disturbance, and vomiting throughout the period on appeal, but with no weight loss, anemia, or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW 1. The criteria for dismissal of the appeal on the claim of entitlement to service connection for IBS have been met. 38 U.S.C. § 7105(d)(5) (2012). 2. The criteria for a higher initial rating for GERD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.27, 4.114, Diagnostic Code 7346 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1981 to November 1994. The Veteran also served in the National Guard with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from November 1994 to November 2003. This appeal to the Board of Veterans’ Appeals (Board) arose from merged appeals of the March 2011, June 2014, and October 2015 rating decision issued by the Department of Veterans Affairs (VA). In March 2011, the Veteran’s claim of service connection for IBS was denied. March 2011 Rating decision. The Veteran perfected his appeal to the Board. See April 2011 Notice of Disagreement (NOD); May 2012 Statement of the Case (SOC); May 2012 Substantive Appeal (VA Form 9). In December 2014, the Board the Board remanded the issue of service connection for IBS to obtain an addendum medical opinion regarding aggravation. Id. The development was completed. See April 2015 VA examination. During pendency of the appeal, the Veteran filed a claim of service connection for sleep apnea and a claim for a higher rating for his service connected gout. See July 2013 VA Form 21-4138. In June 2014, the RO denied both claims and the Veteran perfected his appeal to the Board. See June 2014 Rating decision; June 2014 NOD; August 2015 SOC; August 2015 Form 9. In November 2015, the Board remanded for further development of the Veteran’s claims of service connection for IBS, service connection for sleep apnea, and for a higher rating for his gout. November 2015 Board decision. The Board requested that the Agency of Original Jurisdiction (AOJ) attempt to obtain additional service personnel and VA treatment records, and addendum opinions from VA examiners about the Veteran’s IBS, sleep apnea, and gout. Id. The Board finds that the AOJ substantially complied with the remand directives. During pendency of the appeal, the Veteran filed a claim of service connection for GERD, which was initially denied by the RO, but later granted with a 10 percent disability rating after additional evidence was submitted within the one year appeal period. See March 2015 VA Form 21 526EZ; October 2015 Rating decision; March 2016 Rating decision. The Veteran perfected an appeal for a higher initial rating for GERD. See March 2016 NOD; November 2016 SOC; December 2016 Form 9. In December 2016, the AOJ granted a higher rating of 40 percent for gout, effective November 15, 2016. December 2016 Rating decision. In January 2017, the AOJ granted service connection for IBS, effective March 10, 2015, but found the Veteran’s service connected GERD reflects the predominant disability picture between the two digestive system disabilities and assigned a single evaluation of 10 percent based on GERD. See 38 C.F.R. § 4.114; January 2017 Rating decision. 1. Entitlement to service connection for IBS. 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 (2012). The January 2017 rating decision granted the Veteran’s claim of entitlement to service connection for IBS. As this is a full grant of benefits for this issue on appeal, there remains no allegation of error of fact or law for appellate consideration. The Board, therefore, finds that this aspect of the Veteran’s appeal has been satisfied and the appeal is dismissed. 2. Entitlement to a higher initial rating for GERD, currently evaluated at 10 percent. The Veteran asserts entitlement to an initial disability rating of 30 percent for GERD. See March 2016 NOD; February 2017 VA Form 21 4138. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s GERD is currently evaluated at 10 percent under diagnostic code (DC) 7399 7346. See March 2016 Rating decision. When an unlisted condition such as GERD is encountered, it is 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. See 38 C.F.R. § 4.20. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be “built-up” as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. 38 C.F.R. § 4.27. Thus, in this case, the rating criteria for DC 7346 is used to evaluate the Veteran’s GERD. Under DC 7346, a 10 percent rating is warranted with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. The next higher rating of 30 percent 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. Id. The next higher rating of 60 percent 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. Id. After a thorough review of all the available evidence and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s GERD warrants a 30 percent rating. The September 2015 VA examiner opined that the Veteran’s GERD has manifested with symptoms of persistently recurrent epigastric distress, reflux, regurgitation, substernal pain, sleep disturbance due to esophageal reflux, nausea, and vomiting, but no other pertinent signs or symptoms. See September 2015 VA examination. The VA examiners findings are consistent with the November 2015 Esophageal Conditions Disability Benefits Questionnaire (DBQ) completed by private treatment provider J P, M.D. Dr. J P opined that the Veteran has a diagnosis for GERD with persistently recurrent epigastric distress, pyrosis, regurgitation, substernal arm or shoulder pain, sleep disturbance, nausea, and vomiting, but no weight loss, anemia, or dysphagia. See November 2015 Private treatment record. The VA examiner and Dr. J P are medical professionals qualified to evaluate the Veteran’s GERD and who had the opportunity to examine the Veteran. The Board finds the opinions entitled to probative weight. Moreover, the findings and opinions by the VA examiner and Dr. J P are consistent with the Veteran’s assertions that his GERD is entitled to a 30 percent rating. See 38 C.F.R. § 4.114, DC 7346. The Board acknowledges that the treatment evidence for GERD shows that the Veteran complained of substernal fullness and nausea, but with no other noted symptoms, and that the more recent treatment evidence notes that his GERD symptoms are controlled. See March 2015 VA treatment record; March 2016 VA treatment record. However, in resolving all reasonable doubt in favor of the Veteran and giving more probative weight to the findings and opinions by the VA examiner and Dr. J P, the Board finds that the Veteran’s GERD more closely approximates the 30 percent rating throughout the period on appeal. A higher rating of 60 percent is not warranted as the evidence of record does not show symptoms of material weight loss, hematemesis, melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Moreover, the Veteran asserts his GERD symptoms warrant a 30 percent rating. See March 2016 NOD; February 2017 VA Form 21 4138. Accordingly, the Board finds that the Veteran’s service connected GERD warrants an initial rating of 30 percent. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service connected disabilities is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because clarification by a VA examiner is needed on whether the Veteran’s sleep apnea was incurred in or otherwise related to service, including as proximately caused by or aggravated by his service connected disabilities. The Veteran asserts entitlement to service connection for sleep apnea as secondary to his service connected disabilities. July 2013 VA Form 21 4138; June 2014 NOD. In a February 2014 email correspondence with his VA treating physician and in a February 2017 statement with his substantive appeal, the Veteran asserts having sleep problems around age 25 or 1988 based on snoring. See February 2014 VA treatment evidence; February 2017 VA Form 21-4138. An April 2014 VA examiner opined that the Veteran’s sleep apnea is less likely than not secondary to his service connected gout, hypertension, or chronic kidney disease. April 2014 VA examination. In November 2016, the Veteran was afforded another VA examination in which the examiner opined that the Veteran’s sleep apnea clearly and unmistakably existed prior to service, was not aggravated by an in service event, injury, or illness, and not caused by or aggravated by his service connected gout, hypertension, or chronic kidney disease. See November 2016 VA examination. However, the Board’s review of the record shows no evidence indicating that the Veteran’s sleep apnea preexisted his active military service or service with the National Guard. The Board, thus, finds that further development is necessary to clarify the earliest incurrence of the Veteran’s current sleep apnea disability supported by the evidence. If sleep apnea did not exist prior to his active military service or service with the National Guard, clarification of whether his sleep apnea was incurred in or otherwise related to service is needed, including as proximately due to or aggravated by his service connected disabilities. 2. Entitlement to an increased rating for gout is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to a higher rating for gout because clarification is needed by a VA examiner on the nature and severity of the Veteran’s service connected gout throughout the period on appeal. On July 2013, the Veteran asserted a claim for a higher rating for his gout, currently rated as 20 percent disabling. The Veteran related to his VA treatment provider to having gout flares two to three times a month in his right and left foot. See June 2013 VA treatment evidence. The April 2014 VA examiner opined that the Veteran’s gout affected only his left great toe, and not the rest of his left foot or his right foot. See April 2014 VA examination. A March 2016 VA treatment note indicates that the Veteran’s gout was stable with two to three episodes a year. See March 2016 VA treatment evidence. Then in November 2016, the Veteran was afforded another VA examination in which the examiner opined that the Veteran gout initially involved the left great toe and it then progressed to involve the left and right foot, but did not indicate when his gout progressed to each area. See November 2016 VA examination. The VA examiner also opined that the Veteran had four or more incapacitating episodes a year, but did not indicate when that frequency of episodes began. See id. The November 2016 VA examiner also did not provide detailed rationale or citation to supporting evidence for either finding. The Board finds that further development is needed to assess the severity of the Veteran’s gout during the entire period on appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for his gout, and provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately his responsibility to ensure that private treatment records are received. 2. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s sleep apnea. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination regarding the etiology of his sleep apnea. The medical professional should respond to the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s sleep apnea began in (or is otherwise related to) the Veteran’s active military service from August 1981 to November 1994, or during his service in the National Guard from November 1994 to November 2003? The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms, including his assertion that he has a history of snoring when he was 25 years old or around 1988. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (b) Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s current sleep apnea is proximately due to or the result of his service connected disabilities, including gout, hypertension, chronic kidney disease, chondromalacia patella, and gastroesophageal reflux disease. If not, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current sleep apnea is aggravated (permanently made worse) by one or more service connected disabilities, to specifically include gout, hypertension, chronic kidney disease, chondromalacia patella, and gastroesophageal reflux disease. The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms, including his assertion that pain from his service connected disabilities affect his ability to sleep, including sleep disturbance from esophageal reflux of 4 or more times a year. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. (c) If sleep apnea is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explained why that is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected gout. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. This includes the number of gout exacerbations per year, the duration of the exacerbations, whether they are incapacitating, and any related symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to gout alone and discuss the effect of the Veteran’s gout on any occupational functioning and activities of daily living. The examiner should consider the lay and medical evidence. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should consider the entire period on appeal, from July 2012 to present, and note any increase or decrease in the signs and symptoms listed in the rating criteria. (Continued on next page) 4. After the above development has been completed, review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above if deemed warranted by the AOJ, and re-adjudicate the claims. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel