Citation Nr: 20005907 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 19-04 064 DATE: January 23, 2020 ORDER New and material evidence having been submitted, the claim for service connection for a left foot fungus, claimed as a left big toe disability status post-surgery, to include due to Gulf War environmental hazards, is reopened. Entitlement to a 30 percent rating, but no higher, for gastroesophageal reflux disease is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a left foot fungus, claimed as a left big toe disability status post-surgery, to include due to Gulf War environmental hazards, is remanded. Entitlement to service connection for pancreatitis to include as secondary to gastroesophageal reflux disease is remanded. Entitlement to service connection for diabetes mellitus to include as secondary to gastroesophageal reflux disease is remanded. Entitlement to service connection for pancreatic cancer to include as secondary to gastroesophageal reflux disease is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for a left foot fungus, claimed as a left big toe disability status post-surgery, to include due to Gulf War environmental hazards, was previously denied in an unappealed August 2013 rating decision. 2. New and material evidence has been received since the August 2013 rating decision which relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left foot fungus. 3. For the period on appeal, the Veteran’s gastroesophageal reflux disease has been manifested by symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and was productive of considerable impairment of health. 4. The Veteran’s gastroesophageal reflux disease has not manifested with symptoms of pain, vomiting, material weight loss and hematemesis, melena with moderate anemia, or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. An August 2013 rating decision denying entitlement to service connection for a left foot fungus is final; new and material evidence has been received to reopen this claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for a 30 percent rating, but no higher, for gastroesophageal reflux disease have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.21, 4.113, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to September 1994, from February 2003 to February 2004, and from July 2005 to August 2006, including service in the Southwest Asia Theater of Operations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence for Left Foot Fungus A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). A July 2009 rating decision denied entitlement to service connection for a left foot fungus, claimed as a left big toe disorder, status post surgery, because there was no medical evidence of a diagnosis or treatment for the disorder while on active duty. The rating decision also noted that Gulf War environmental hazards were not associated with this disability, and that secondary service connection was not considered. The Veteran did not thereafter perfect a timely appeal, and that decision is final. In an August 2013 rating decision, the claim was once again denied for failure to submit new and material evidence. No appeal was perfected, and that rating decision is also final. Since the August 2013 rating decision, the Veteran submitted a statement regarding his foot disability to include describing the removal of a toe nail while on active duty. The claim relates to service connection and the claims file has been supplemented with lay evidence of an in-service event. The Board finds the added evidence to be both new and material in that it relates to an unestablished fact associated with an element of service connection, which has not been previously considered by VA decision-makers. Accordingly, the claim is reopened. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease The Veteran claims that the severity of his gastroesophageal reflux disease is not accurately represented by the disability rating he currently holds. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found through “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Diseases of the digestive system are rated under 38 C.F.R. § 4.114. Gastroesophageal reflux disease is not a disease specifically listed in the rating schedule. It is instead rated by an analogy to a listed disorder, based on the functions affected, anatomical localization, and symptomatology. 38 C.F.R. § 4.20. The provisions of Diagnostic Code 7346, for evaluation of a hiatal hernia, have been applied here. Under Diagnostic Code 7346, hiatal hernia is assigned a 10 percent rating with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, 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, Diagnostic Code 7346. The Veteran seeks a rating in excess of 10 percent for his disability symptoms. The Veteran was afforded an esophageal VA examination in March 2017. For this examination the Veteran reported controlling his gastroesophageal reflux symptoms with Protonix taken on a daily basis. The examiner documented symptoms of reflux, substernal pain, sleep disturbance four or more times per year, and nausea with the same frequency. No strictures or spasms were documented. From an evaluation in June 2017, the examiner documented persistently recurrent epigastric distress four or more times per year. Symptoms included pyrosis, reflux, associated sleep disturbance, and nausea. There was no documentation of dysphagia or substernal, and there was no arm or shoulder pain productive of any impairment of health. The Veteran was next evaluated in June 2018 when he reported that the condition had gotten much better with the continued use of Protonix. Pyrosis and reflux was once again documented, however no upper body pain or sleep disturbance was indicated, nor was there any medical evidence of stricture, spasm, or diverticulum of the esophagus. In May 2019 an independent VA rating evaluation regarding gastroesophageal reflux disease was commissioned. For this evaluation the examiner considered the World Health Organization definition of impairment of health to be any loss or abnormality of physiological, psychological or anatomical structure of function, whether permanent or temporary. The examiner found the Veteran’s statements about his pyrosis, reflux dysphagia and shoulder pain to be credible. She also considered his description of his sleep disturbance as attributable to his regurgitation, pyrosis and eating disturbance. Restriction on diet was linked to the Veteran’s difficulty swallowing which in turn precluded intake of specific vitamins, minerals and macronutrients, all of which affect his general nutritional health. She characterized the Veteran’s documented symptomatology as recurrent epigastric distress. In conclusion, when she overlaid the Veteran’s disability picture with Diagnostic Code 7346, she concluded that his current disability rating does not accurately reflect his current level of disability. More specifically, she determined that his symptoms were productive of an impairment of health and that the criteria for a 30 percent rating more accurately describes his presentation. The Board acknowledges that there are contradicting medical opinions that have preceded the most recent independent rating evaluation for gastroesophageal reflux disease. However, the May 2019 opinion is based on competent lay and medical evidence of record, references published research results and is supported by an adequate rationale to substantiate the Veteran’s claim that his condition has indeed worsened. The Board therefore affords the Veteran the benefit of the doubt and finds that he does have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation which is productive of considerable impairment of health, and the criteria for 30 percent are met. The Veteran does not, however, meet the criteria for a rating any higher than 30 percent. He has never been found to have symptoms of pain, vomiting, material weight loss and hematemesis, or melena with moderate anemia, and no medical professional has described his impairment of health as “severe.” See 38 C.F.R. § 4.114, Diagnostic Code 7346. The findings of the VA examiners and the May 2019 medical opinion are consistent with the Veteran’s other medical records, which also do not indicate that he has ever met these criteria for a higher rating. The Board does not dispute the credibility of the statements from the Veteran regarding having discomfort, pain, and digestive distress related to his gastroesophageal reflux disease. See Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). Accepting the Veteran’s statements in this appeal is not an insignificant part of the basis upon which an increased 30 percent rating could be justified, but these statements alone do not demonstrate that the Veteran has met the criteria for a rating higher than 30 percent. In sum, the Board finds that a 30 percent increased rating, but no higher, is warranted for gastroesophageal reflux disease for the period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against assignment of a rating higher than 30 percent. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Initially, the Board notes that service personnel records reflect three period of extended active duty (EAD) from August 1981 to August 2006 with service in the Army, Air National Guard and Air Force Reserve as a flight medic. The Veteran also maintained drilling status to include satisfactory annual tour participation for that same 25-year period. Additional development is needed to determine if the Veteran’s 9 years of reserve component service included any additional periods of extended active duty not reflected on the three DD-214’s of record. Left foot fungus The Veteran’s entrance examination in November 1980 noted flat feet upon induction into service. A periodic Class III flight physical from July 2000 shows that the Veteran had foot surgery in approximately 1997, which the Veteran asserts is related to his claim. The Veteran has also reported the removal of a toe nail while on active duty. As yet, the Veteran has not been afforded a VA examination to investigate the nature and etiology of his foot condition. Accordingly, further development is warranted, and the Veteran should be provided with an appropriate VA examination. Diabetes mellitus While service treatment records are silent as to any complaints, treatment or diagnosis of diabetes, the Veteran contends that his diabetes is associated with his service-connected gastroesophageal reflux disease. Without the assistance of a medical opinion or evaluation, the RO issued a rating decision in April 2017 finding no medical connection between the Veteran’s diabetes and gastroesophageal reflux disease. To date, the record contains no medical opinion that addresses secondary service connection for this disability. Accordingly, further development is required, and the Veteran should be afforded a VA examination which includes consideration of the secondary service connection theory of entitlement. Pancreatitis In both the April 2017 rating decision and the December 2018 statement of the case, the RO maintained that the medical evidence of record does not show that pancreatitis resulted from or was aggravated by a service-connected disability. A private medical evaluation from April 2015 includes findings to suggest autoimmune pancreatitis but does not address secondary service connection. Upon review of the claims file, the Board finds that there is no medical opinion of record that evaluates secondary service connection or supports the RO finding on secondary service connection. Accordingly, the Veteran should be afforded a VA examination to properly investigate his secondary service connection theory of entitlement. Pancreatic cancer The Veteran has been diagnosed with pancreatic cancer, has undergone pancreas surgery in August 2015, and VA treatment records from March 2019 indicate that he is receiving oncology treatment from outside of the VA. While service treatment records are silent for complaints, treatment or a diagnosis of pancreatic cancer during his extended active duty tours with the Army, Air National Guard and Air Force Reserve, he has not been afforded a VA examination to investigate possible secondary service connection to his service-connected gastroesophageal reflux disease. Accordingly, further development is warranted, and the Veteran should be afforded an appropriate VA examination. The matters are REMANDED for the following action: 1. Take all appropriate steps to verify all of the Veteran’s periods on active duty for 30 days or more between September 1994 and February 2003 and between February 2004 and July 2005. All necessary service departments or records storage facilities should be contacted, including, the National Personnel Records Center. 2. Obtain all outstanding, pertinent VA treatment records from the Columbia, South Carolina VA Medical Center since August 2006. 3. Arrange for the Veteran to undergo a VA examination with a dermatologist to determine the nature and etiology of the skin condition associated with his foot disability. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. The examiner must then provide an opinion regarding whether is it at least as likely as not (50 percent or greater probability) that the skin condition associated with his foot disability had its onset during or is otherwise caused by his active duty service or was/is caused or aggravated (increased in severity beyond natural progression) by his service-connected gastroesophageal reflux disease. The examiner must also opine whether it is at least as likely as not that the Veteran’s skin condition associated with his foot disability is related to environmental hazards of the Gulf War. 4. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his adult-onset diabetes mellitus. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. The examiner must then provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus had its onset during or was otherwise caused by his active duty service, or was/is caused or aggravated (increased in severity beyond natural progression) by his service-connected gastroesophageal reflux disease. 5. Schedule the Veteran to undergo a VA examination to determine the nature etiology of his pancreatitis and pancreatic cancer. The examiner must be provided access to all files in Virtual VA/Legacy and VBMS. The examiner must specify in the report that these records have been reviewed. The VA examiner must then provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s pancreatitis, had its onset during or was otherwise caused by his active duty service, or was/is caused or aggravated (increased in severity beyond natural progression) by his service-connected gastroesophageal reflux disease. The VA examiner should also provide an opinion regarding whether it is at least as likely as not that the Veteran’s pancreatic cancer had its onset during or was otherwise caused by his active duty service, or was/is caused or aggravated by his service-connected esophageal reflux disease. A complete and fully explanatory rationale must be provided for any opinions offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan, 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 it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.