Citation Nr: 21003100 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-50 039 DATE: January 19, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for Barrett's esophagus and intramucosal adenocarcinoma of the esophagus is denied. REMANDED Entitlement to a rating in excess of 30 percent for asbestosis with calcified plaques is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus was manifested by persistently recurrent epigastric distress, dysphagia, pyrosis, and substernal pain that were not productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus have not been met at any time during the period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1951 to December 1954. 1. Entitlement to an initial rating in excess of 10 percent for Barrett's esophagus and intramucosal adenocarcinoma of the esophagus Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran’s service-connected Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus has been initially evaluated as 10 percent disabling under Diagnostic Code 7399-7346. Where a veteran has been diagnosed as having a specific condition, and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. See 38 C.F.R. § 4.20. In this case, the Veteran’s diagnosis of Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus is not specified in the Rating Schedule. Thus, the Veteran has been rated by analogy under Diagnostic Codes 7399-7346. Diagnostic Code 7399 is a general reference to the rating criteria for disabilities of the digestive system. Diagnostic Code 7346 provides the rating criteria for hiatal hernia. These are the appropriate Diagnostic Codes for rating by analogy because they reference both the anatomical localization of the Veteran’s esophageal condition (the digestive system, specifically the esophagus) and the symptoms (including epigastric distress, dysphagia, pyrosis, and substernal pain). As these diagnostic codes reference both the location and symptoms of the Veteran’s Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus, rating by analogy is appropriate. The Board also notes that the Veteran was diagnosed with intramucosal adenocarcinoma of the esophagus in 2005. Malignant neoplasms of the digestive system, including esophageal cancer, are rated under Diagnostic Code 7343. Under Diagnostic Code 7343, a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. § 4.114, Diagnostic Code 7243. As it has been more than six months after the discontinuance of treatment, and there is no local recurrence or metastasis of the Veteran’s esophageal cancer, it shall be rated based on residuals. Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned 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 60 percent rating is assigned 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was first examined in conjunction with his esophagus claim in January 2014. VA Esophageal Conditions examination, January 2014. At that time, he reported infrequent episodes of epigastric distress, dysphagia, pyrosis, reflux, sleep disturbance, mild nausea, and mild hematemesis. He treated his symptoms with twice daily Nexium and did not have esophageal stricture, spasm, or acquired diverticulum. A November 2013 complete blood count was normal. The examiner diagnosed the Veteran with Barrett’s esophagus and intramucosal adenocarcinoma of the esophagus and concluded that his esophageal condition did not impact his ability to work. The Veteran was next examined by a VA contract examiner in July 2019. VA-QTC Esophageal Conditions examination, July 2019. At that time, he complained of difficulty swallowing, sore throat, reflux, and nausea. He took pantoprazole twice daily. There was no esophageal stricture, spasm, or acquired diverticulum. A complete blood count showed low hemoglobin and hematocrit. The examiner diagnosed the Veteran with Barrett’s esophagus and cancer (in remission) and concluded that they did not impact his ability to work. The Veteran was most recently examined by a VA contract examiner in October 2020. VA-LHI Esophageal Conditions examination, October 2020. At that time, he complained of dysphagia, pyrosis/heartburn, reflux, odynophagia (painful swallowing), regurgitation, and substernal pain. He was treated with omeprazole twice daily. The examiner also noted that the Veteran had moderate esophageal stricture that was not amenable to dilation, based on a July 2020 EGD. The Veteran reported continued dysphagia after the dilation with no weight loss and that he would undergo another dilation in three months. The examiner diagnosed him with Barrett’s esophagus, esophageal ulcer, esophageal stricture, and adenocarcinoma of the esophagus. She concluded that his conditions did not impact his ability to work. The medical evidence also includes three Disability Benefits Questionnaires (DBQs) from private providers, dated in September 2018, June 2019, and August 2020, and VA treatment records (VA TRs). This evidence is consistent with the VA and VA contract examinations. The September 2018 DBQ noted the Veteran’s complaints of persistently recurrent epigastric distress, pyrosis, reflux, substernal, arm, or shoulder pain, mild nausea, and mild, occasional esophageal spasm. Private DBQ, September 2018. The private physician indicated that the Veteran’s esophageal conditions did not affect his ability to work. The June 2019 DBQ noted the Veteran’s complaints of dysphagia and daily use of pantoprazole. Private DBQ, June 2019. The private provider indicated that he did not have any symptoms because of his use of medication. She also noted that his May 2019 EGD showed recurrent nodular Barrett’s that was resected. Finally, the August 2020 DBQ noted the Veteran’s complaints of dysphagia (resolved after the July 2020 dilation) and mild nausea and vomiting (both treated and resolved), as well as his use of pantoprazole. Private DBQ, August 2020. The provider noted that he had asymptomatic esophageal stricture that was dilated earlier in July 2020. The July 2020 EGD showed Barrett’s esophagus with low-grade dysplasia and esophageal ulcer with mild stricture. In addition to the medical evidence, the Veteran has provided written statements regarding his esophageal symptoms. This lay evidence is also consistent with the VA examination reports. Upon review of the evidence of record, discussed above, there is no basis for an initial rating in excess of 10 percent at any time during the appeals period. Although the Veteran reported multiple symptoms of his esophageal condition, there is no evidence that these symptoms are productive of considerable impairment of health. Significantly, the Veteran’s symptoms appear to be somewhat controlled by medication, and there were no findings of weight loss, anemia, or other signs of impairment of health. There was also no indication that the Veteran’s esophageal condition interfered with his ability to work. Without evidence of considerable impairment of health, the overall disability picture is closer to the criteria for a 10 percent evaluation than that for a 30 percent evaluation. Accordingly, an increase, staged or otherwise, is not warranted. The Board has also considered the Veteran’s general lay statements that he should be entitled to a higher rating. Notably the Veteran, as a lay person, is competent to describe observable symptoms. However, laypersons do not have the competence to render an opinion as to the level of severity of Barrett’s esophagus. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial rating in excess of 10 percent, that doctrine is not applicable. 38 U.S.C. § 5107(b). This appeal raises no other issues, other than the TDIU claim described below. The Board is aware that the Veteran has separately been assigned a 30 percent evaluation for esophageal stricture. He has not initiated an appeal of the grant of this evaluation from the October 2020 rating decision, and the applicable diagnostic criteria of Diagnostic Code 7203 contemplate a different combination of symptoms. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for asbestosis with calcified plaques is remanded. A review of the Veteran’s VA treatment records (VA TRs) indicates that he was admitted to a private hospital, A.B., in June 2018 for pneumonia. VA TR, December 2018. Despite the possible relevance to his respiratory claim, there is no indication that the RO attempted to obtain any records from this private facility. On remand, the Veteran should be asked to identify and provide a release for the private hospital records. 38 C.F.R. § 3.159(c). 2. Entitlement to TDIU is remanded. As the further development and readjudication of the asbestosis claim could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. The AOJ must first develop and readjudicate the asbestosis claim before readjudicating the issue of TDIU. The matters are REMANDED for the following actions: Ask the Veteran to complete a VA Form 21-4142 for his records from his December 2018 admission to A.B. in Bloomington, IL. Make two requests for the authorized records from all identified providers and/or facilities unless it is clear after the first request that a second request would be futile. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.