Citation Nr: 21062421 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-53 352 DATE: October 7, 2021 ORDER Entitlement to an initial rating of 30 percent for gastritis/duodenitis and irritable bowel syndrome (IBS) is granted throughout the appeal period. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective from April 30, 2014 is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an auditory processing disorder is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's gastritis/duodenitis and IBS has been manifested by alternating diarrhea and constipation, with more or less constant abdominal distress. 2. Effective from April 30, 2014, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent for gastritis/duodenitis and IBS have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.113, 4.114, Diagnostic Codes 7307, 7319. 2. Effective April 30, 2014, the criteria for a grant of TDIU have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2007 to April 2014, including service in Iraq. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2016 and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, a September 2018 rating decision granted a 100 percent rating for the Veteran's service-connected posttraumatic stress disorder (PTSD) with major depressive disorder and insomnia, effective March 20, 2018. Inasmuch as the Veteran has a 100 percent schedular rating from March 20, 2018, the matter of entitlement to TDIU has been characterized as entitlement to TDIU for the period prior to March 20, 2018. Finally, in an October 2018 rating decision, the Veteran was awarded an initial 10 percent rating for his gastritis/duodenitis and IBS throughout the appeal period (i.e., April 30, 2014). The issue has been characterized accordingly. The Veteran testified before the undersigned Veterans Law Judge in a July 2021 virtual hearing. 1. Entitlement to an initial rating in excess of 10 percent for gastritis/ duodenitis and IBS. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As an initial matter, this claim arises from the initial grant of service connection, rated 10 percent disabling, effective April 30, 2014. The Veteran's disability is rated under Diagnostic Codes 7307-7319 (for gastritis and irritable colon syndrome). 38 C.F.R. § 4.114. Under Diagnostic Code 7307 (for gastritis), a 10 percent rating is warranted for chronic gastritis with small nodular lesions, and symptoms. A 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent (maximum) rating is warranted chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.113. Under Diagnostic Code 7319 (for irritable colon syndrome (spastic colitis, mucous colitis, etc.)), a 30 percent rating is warranted for severe irritable colon syndrome that is characterized by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress; a 10 percent rating is warranted for moderate irritable colon syndrome that is characterized by frequent episodes of bowel disturbance with abdominal distress. Notably, 38 C.F.R. § 4.114 provides that 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 elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. After careful review of the record, the Board finds that the Veteran's gastritis/duodenitis and IBS warrants an initial rating of 30 percent throughout the appeal period. The Veteran has consistently complained of stomach cramps with occasional sharp pain on a daily basis. See October 2015 VA examination; July 2021 hearing. In addition, on December 2016 VA examination, the examiner noted that the Veteran's disability is manifested by alternating constipation and diarrhea. At the July 2021 hearing, the Veteran testified he experiences daily stomach discomfort and pain, as well as daily diarrhea. As indicated above, a 30 percent rating under Diagnostic Code 7319 is warranted for severe irritable colon syndrome that is characterized by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 3.114. The Board finds that the Veteran's symptoms have been consistently reflective of severe irritable colon syndrome, thereby warranting an initial rating of 30 percent for the Veteran's service-connected gastritis/duodenitis and IBS for the entire appeal period. At his July 2021 Board hearing, the Veteran indicated that an initial rating of 30 percent for his gastritis/duodenitis and IBS would satisfy his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board finds that this grant represents a complete grant of the benefit sought on appeal and additional discussion of whether the Veteran meets the criteria for a higher schedular rating for his gastritis/duodenitis and IBS is not warranted. 2. Entitlement to TDIU prior to March 20, 2018. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a 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 nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor, and without considering any impact of his age or nonservice-connected disabilities, the evidence supports awarding TDIU effective from April 30, 2014 (the day after separation from service). In reaching this determination, the Board emphasizes that he determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this regard, the Board notes that the Veteran's employment history shows that he has not been employed since his separation from active service. See, e.g., March 2016 VA Form 21-8940. It appears that the Veteran's employment history has included working in a factory and in security. See October 2013 VA mental disorders examination. The Veteran's education includes approximately two years of college education. Id. The critical facts in this question are not in dispute. The Veteran has indicated that he has been unable to be gainfully employed since his separation from active service due to his service-connected left knee, cervical spine, migraine headaches, left shoulder, and gastritis/duodenitis and IBS. See March 2016 VA Form 21-8940. The pertinent evidence of record includes an October 2015 VA stomach and duodenal conditions examination wherein the Veteran complained of cramps with occasional sharp pain on a daily basis, as well as recurrent nausea. June 2016 VA shoulder and arm conditions examination noted the Veteran's left shoulder symptoms include fairly constant pain and limited range of motion, worsened with activity such as lifting and weight bearing. The examiner indicated the Veteran had limited range of motion of the left shoulder which may limit him from performing jobs that require lifting. June 2016 VA knee and lower leg conditions examination noted the Veteran's complaint of typical daily left knee pain, and flare-ups with activity such as standing/walking for over an hour. The examiner found the Veteran was limited in performing jobs that require extended time on his feet or walking. In a June 2016 VA Form 21-0958, the Veteran reported he has one to two headaches per week, sometimes more, that it was impossible to do daily functions when he has a migraine, and that he has to lay down in a dark room. In a November 2016 VA Form 21-0958, the Veteran reported he has stomach pain every day, including severe diarrhea multiple times per day. On December 2016 VA knee and lower leg conditions examination, the examiner opined that the Veteran is able to do a sedentary, light or moderately heavy job in regard to his left knee as long as he has periodic breaks but would be unable to do a physically strenuous job in regards to his left knee disability. On December 2016 VA shoulder and arm conditions examination, the examiner opined that the Veteran was only able to do sedentary or light work as to his left shoulder disability. Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence supports the functional impairment associated with his service-connected disabilities is of such nature and severity as to prevent him from securing or following a substantially gainful employment since his separation from active service (i.e., since April 30, 2014). It is significant that the Veteran's employment history appears to consist of working in a factory or in security, physically demanding areas of employment. However, multiple VA examiners have found the Veteran is only capable of sedentary or light-duty work. See, e.g., June 2016, October 2016, December 2016 VA examinations. The Board finds that the Veteran's PTSD with major depressive disorder, migraine headaches, left shoulder, cervical spine, left knee, rhinitis, and gastritis/duodenitis with IBS are of a severity to prevent him from securing or following a substantially gainful employment, consistent with his education and employment history. Accordingly, the Board finds the Veteran is entitled to TDIU effective from April 30, 2014, the day following the Veteran's discharge from active duty, which represents a complete grant of the benefit sought on appeal. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for an auditory processing disorder is remanded. As noted above in the Introduction, the Veteran's service includes service in Iraq. The Veteran has established service connection for tinnitus. See May 2017 rating decision. Hence, the Board concedes the Veteran was likely exposed to acoustic trauma during service. The Veteran was afforded a VA examination in April 2017. Notably, a hearing loss disability of either ear was not found pursuant 38 C.F.R. § 3.385. At the July 2021 hearing, the Veteran testified that his hearing has worsened in severity since the April 2017 VA examination. Under the circumstances, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current severity and etiology of his bilateral hearing loss. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Veteran contends that he has an auditory processing disorder and he should be afforded a VA examination to determine the nature and etiology of his auditory processing disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and etiology of his hearing loss and auditory processing disorder. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examination must describe the functional effects of the Veteran's hearing loss, if found. The examiner should opine as to whether it is at least as likely as not that the Veteran's hearing loss had its onset in service or is otherwise related to service, to include as a result of conceded noise exposure during service. In addressing this question, please do not rely solely on the fact that the Veteran had "normal" hearing at separation from service to support the opinion. Please also discuss the possibility of delayed-onset hearing loss, while also considering the Veteran's statements denying post-service noise exposure. The examiner should also indicate whether the Veteran has an auditory processing disorder, and if so, opine whether it is at least as likely as not that the Veteran's auditory processing disorder had its onset in service or is otherwise related to service. A complete rationale for all opinions must be provided. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.