Citation Nr: 20002909 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-07 951 DATE: January 14, 2020 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to a rating of 40 percent for service-connected digestive system condition is granted. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran’s bilateral hearing loss has not manifested with exceptional patterns of hearing impairment or more than level I hearing impairment in the right ear and level II hearing impairment in the left ear. 2. Resolving any reasonable doubt in favor of the Veteran, the Veteran’s digestive system condition manifested with symptoms analogous to moderately severe criteria under DC 7304 as evidenced by his recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2018). 2. The criteria for entitlement to a rating of 40 percent for service-connected digestive system condition have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Codes 7346, 7319, 7305 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service as a with the United States Army from April 1976 to April 1979, February 1980 to January 1982, and September 1987 to September 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the December 2017 rating decision issued by a Department of Veterans Affairs (VA) granting service connection for bilateral hearing loss evaluated as 0 percent disabling. The RO granted the Veteran’s claim for service-connection for gastrointestinal problems and diarrhea secondary to service-connected dyspepsia and gastroesophageal reflux disease (GERD). Since VA regulations do not allow separate evaluations for digestive disorders, the RO combined the Veteran’s claim for a rating in excess of 10 percent for dyspepsia and GERD and the Veteran’s claim for secondary service connection for gastrointestinal problems and diarrhea. See 38 C.F.R. §§ 4.113, 4.114. The issues were recharacterized as dyspepsia and GERD with gastrointestinal problems and diarrhea and a rating in excess of 10 percent was denied. The Board notes that the Veteran’s claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was denied. In January 2019, the Veteran filed a timely notice of disagreement (NOD) for the issues of bilateral hearing loss and gastrointestinal problems and diarrhea secondary to dyspepsia and gastroesophageal reflux. As the Veteran’s has multiple digestive system diagnoses and symptomatology’s, the Board finds that recharacterizing the Veteran’s service-connected dyspepsia and GERD with gastrointestinal problems and diarrhea as a digestive system condition will encompass a broader criteria to evaluate the Veteran’s disability picture. See Clemons v. Shinseki, 23 Vet. App. 1, 5, (2009). As such, the issue has been recharacterized as reflected in this decision. Higher Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran indicated that the he disagreed with the December 2017 VA evaluation of his bilateral hearing loss because he feels that basic audiology testing administered immediately after removing wax from his ear drum and the audiologist not acknowledging his tinnitus resulted in the incorrect identification of his level of hearing loss. See Form 9, March 2019. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the level of a Veteran’s hearing loss is based on pure tone threshold results and CNC Maryland Speech Discrimination test results, the Board will therefore consider the results of the examinations on their merits. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The ratings for defective hearing range from 0 percent to 100 percent, based on the organic impairment of hearing acuity as measured by results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for the hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86 when an exceptional pattern of hearing loss is shown. In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). A review of the medical evidence of record reflects that the Veteran had an several audiological evaluations during service, at which time auditory thresholds were recorded in decibels were as follows: March 1976: Hertz 500 1000 2000 3000 4000 Right 10 5 0 BLANK 5 Left 0 0 0 BLANK 15 See STR-Medical, February 1992 at p.5 of 227. March 1979: Hertz 500 1000 2000 3000 4000 Right 25 25 25 BLANK 15 Left 25 15 10 BLANK 25 See STR-Medical, February 1992 at p.77 of 227. February 1980: Hertz 500 1000 2000 3000 4000 Right 10 0 0 30 15 Left 5 0 5 20 30 See STR-Medical, February 1992 at p.117 of 227. June 1982: Hertz 500 1000 2000 3000 4000 Right 15 10 5 20 10 Left 10 10 5 15 15 See STR-Medical, February 1992 at p.132 of 227. May 1987: Hertz 500 1000 2000 3000 4000 Right 15 10 0 5 0 Left 10 0 0 15 10 See STR-Medical, February 1992 at p.157 of 227. February 1988: Hertz 500 1000 2000 3000 4000 Right 25 5 5 15 10 Left 20 5 5 30 15 See STR-Medical, February 1992 at p.162 of 227. June 1988: Hertz 500 1000 2000 3000 4000 Right 25 5 5 15 10 Left 20 5 5 30 15 See STR-Medical, February 1992 at p.165 of 227. June 1990: Hertz 500 1000 2000 3000 4000 Right 20 10 0 15 10 Left 15 10 5 20 20 See STR-Medical, February 1992 at p.195 of 227. A thorough review of the record does not suggest that the Veteran reported or was treated in-service for ear conditions such ear infections, drainage, or vertigo. In April 1991, the Veteran was afforded a VA hearing examination, where the audiology thresholds were recorded as follows: Hertz 500 1000 2000 3000 4000 Right 20 5 0 15 5 Left 15 10 0 10 15 See VA Examination, April 1991 at p.9 of 15. The Veteran’s Maryland CNC speech discrimination bilaterally was 96 percent. In December 2017, the Veteran was afforded a VA hearing loss and tinnitus examination. See C&P Exam, December 2017. The Veteran’s puretone thresholds were recorded as follows: Hertz 500 1000 2000 3000 4000 Right 30 30 20 20 15 Left 25 25 20 30 30 See Id. at p.2 of 10. The average decibel loss in the right ear was 21 Hertz and the average decibel loss in the left ear was 26 Hertz. Id. The Veteran’s Maryland CNC speech discrimination was 92 percent in the right ear and 84 percent in the left ear. Id. These audiological findings correspond to level I hearing impairment in the right ear, and level II hearing impairment in the left ear. 38 C.F.R. § 4.85, Table VI. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the Veteran’s lay statements regarding the severity of his hearing loss symptoms. The Board notes that while the Veteran is competent to provide statements regarding these symptoms as they are within the knowledge and observation of lay witnesses, compensation is determined by the mechanical application of Diagnostic Code 6100. While the Board is sympathetic to the Veteran’s condition, lay statements by themselves are insufficient to determine the severity of hearing loss symptoms for compensation purposes. As the Veteran’s bilateral hearing loss has not manifested with exceptional patterns of hearing impairment or more than level I in the right ear and level II in the left ear, an initial compensable rating is unwarranted. As such, the Veteran’s claim for entitlement to an initial compensable rating for bilateral hearing loss is denied. 2. Entitlement to a 40 percent rating for service-connected digestive system condition is granted. Conditions relating to the digestive system are evaluated under C.F.R. §§ 4.110, 4.111, 4.112, 4.113, 4.114. Certain coexisting diseases in this area, as indicated in the instruction under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. See C.F.R. § 4.113. Under C.F.R. § 4.114, the 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 evaluation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Hyphenated diagnostic codes are used when an evaluation under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be “built up,” meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be “99.” 38 C.F.R. § 4.27. Under the Schedule for Rating Disabilities, Part 4, digestive system conditions are evaluated under DC’s 7301 to 7319, 7321 to 7340, 7342 to 7348, 7351, and 7354. In this case, the Veteran asserts that a rating in excess of 10 percent is warranted for his service-connected digestive system condition. See NOD, January 2019. Veteran’s service-connected digestive system condition is currently rated as 10 percent disabling under hyphenated Diagnostic Code 7399-7346. See Rating Decision-Codesheet, November 2017. The issue was previously evaluated under hyphenated code DC 7399-7305. Id. The Board notes, after a thorough review of the medical evidence of record, the Veteran’s symptomatology most closely approximates the criteria under DC’s 7304 (gastric ulcer), 7305 (duodenal ulcer), 7307 (gastritis), 7319 (irritable colon syndrome), and 7346 (hiatal hernia). Under DC 7304 and 7305, severe ulcers (gastric or duodenal) when manifested by pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena with manifestations of anemia and weight loss productive of definite impairment of health and warrant a 60 percent disability rating. See 38 C.F.R. § 4.114, DC 7304, 7305. A 40 percent disability rating is warranted for moderately severe duodenal ulcers manifested by less than severe but with impairment to health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. Id. A 20 percent disability rating is warranted for a moderate duodenal ulcer manifested by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. Id. A 10 percent disability rating is warranted for a mild duodenal ulcer manifested with recurring symptoms once or twice yearly. Id. Under DC 7307, a 60 percent disability rating is warranted for chronic hypertrophic gastritis identified by gastroscope, with severe hemorrhages, or large ulcerated or eroded areas; 30 percent is warranted if there is small eroded or ulcerated areas and symptoms; and 10 percent is warranted if there are small nodular lesions and symptoms. See 38 C.F.R. § 4.114, DC 7307. For atrophic gastritis resulting in a complication of a number of diseases, including pernicious anemia, the underlying condition is to be rated. Id. Under DC 7319, a 30 percent rating is warranted for severe irritable bowel syndrome (IBS) with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress; 10 percent is warranted for moderate IBS with frequent episodes of bowel disturbance with abdominal distress; and a noncompensable rating is warranted for mild IBS with disturbances of bowel function with occasional episodes of abdominal distress. See 38 C.F.R. § 4.114, DC 7319. Under DC 7346, symptoms of pain, vomiting, material weight loss and hematemesis of melena with moderate anemia; or other symptom combinations productive of severe impairment of health caused by a hiatal hernia warrant a 60 percent disability rating. See 38 C.F.R. § 4.114, DC 7346. A 30 percent disability rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent disability rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. Id. The Veteran filed an increased rating claim for his digestive disability that was received by VA on January 3, 2017. An October 2016 private examination note reflected that the Veteran denied having diarrhea, abdominal pain, constipation, abdominal cramping, nausea, vomiting, GE reflux, GERD, and heartburn/indigestion. See Medical Treatment Record-Non-Government Facility (10/16), February 2017. In November 2017, the Veteran was afforded a VA esophageal conditions examination. See C&P Exam (esophageal conditions), November 2017. The Veteran’s diagnosis was noted as GERD. The Veteran reported that he was taking medication for his GERD. The examiner noted that the Veteran had infrequent episodes of epigastric distress, reflux, regurgitation, and vomiting lasting less than one day occurring 4 or more times a year. No esophageal stricture, spasm, diverticula or other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s condition were noted. The examiner noted that the Veteran’s frequent episodes of heartburn related symptoms could cause disruption in a work day. In December 2017, the Veteran was afforded a VA intestinal conditions examination. See C&P Exam (intestinal conditions), December 2017. The Veteran’s diagnosis of chronic diarrhea is noted as diagnosed in December 2017. The Veteran reported that his condition has gotten worse despite current treatment with medication for his GERD and Metamucil to help bulk his stool. The Veteran also reported that he has an aversion to certain foots because he is concerned he will vomit. The examiner noted that the Veteran has frequent episodes of bowel disturbance with abdominal distress. The Veteran reported that he was instructed to take the Metamucil at night, but “feels a large amount of gas build up and pain like something is fermenting.” Additionally, the Veteran reported that he was unable to get around and do regular exercise due to the condition and was a major contributor to his early retirement because of the long periods of missed work. In December 2017, the Veteran was afforded a VA stomach and duodenal conditions examination. See C&P Exam (stomach and duodenal conditions), December 2017. The Veteran’s diagnosis of dyspepsia associated with GERD is noted as diagnosed in December 2017. The Veteran reported that his condition has gotten worse despite current treatment with Aciphex. The Veteran reported continuous abdominal pain unrelieved by standard ulcer therapy; transient episodes of nausea lasting for 10 days or more and occurring 4 or more times a year; and periodic episodes of vomiting lasting for 1-9 days and occurring 4 or more episodes a year. The examiner noted that the Veteran was currently unemployed, and his stomach condition requires him to be near a restroom facility. In the December 2017 VA medical opinion, the examiner opined that the Veteran’s gastrointestinal problems/diarrhea (secondary to digestive condition-general) is at least as likely as not proximately due to or the result of dyspepsia and gastroesophageal reflux. See C&P Exam (Opinion), December 2017. The examiner stated, “Veteran is service connected for dyspepsia with GERD. Medical records confirm that more recently the Veteran has developed recurrent diarrhea. Literature suggests that there is a correlation between GERD and the development of chronic diarrhea and IBS. There are no other interval conditions to explain his diagnosis. Id. The Board notes that there is no evidence to that the Veteran has been diagnosed with a gastric or duodenal ulcer. However, the Veteran’s digestive system symptoms have continuously been referred to as gastric and not duodenal in nature. As such, the Board the finds that DC 7304 (gastric ulcer) is more appropriate than DC (duodenal ulcer). Further, resolving any reasonable doubt in favor of the Veteran, the Board finds that for the period since December 15, 2017, the Veteran’s condition manifested with symptoms analogous to moderately severe criteria under DC 7304 as evidenced by his recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year noted during the December 2017 VA examinations. As such, entitlement to a 40 percent rating for service-connected digestive system condition is warranted. There is no evidence reflecting that the Veteran’s digestive system condition is manifested by pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena with manifestations of anemia and weight loss productive of definite impairment of health. See 38 C.F.R. § 4.114, DC 7304. As such, a 60 percent disability rating under DC 7304 is unwarranted. Additionally, there is no evidence to support a finding that the Veteran hypertrophic gastritis identified by gastroscope manifested by severe hemorrhages, or large ulcerated areas and symptoms. See 38 C.F.R. § 4.114, DC 7307. As such a 60 percent disability rating under DC 7307 is unwarranted. Further, there is no evidence to suggest that the Veteran’s digestive system condition has manifested with symptoms of pain, vomiting, material weight loss and hematemesis of melena with moderate anemia; or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, DC 7346. As such, a 60 percent disability rating under DC 7346 is unwarranted. (Continued on the next page)   Accordingly, a 40 percent rated, but no higher is warranted for the Veteran’s service-connected digestive system condition is granted. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel 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.