Citation Nr: 21066849 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-20 199 DATE: November 2, 2021 ORDER Entitlement to service connection for color blindness is denied. Entitlement to an evaluation of 20 percent, but no higher, for duodenitis with gastroesophageal reflux disease (GERD) is granted. Entitlement to a compensable evaluation for right lower lung calcified granuloma is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a sinus disability is denied. FINDINGS OF FACT 1. The Veteran's color blindness was a congenital defect; he did not have a superimposed disability. 2. The Veteran's duodenitis with GERD most closely approximated symptoms of continuous moderate manifestation. 3. There are no pulmonary function tests (PFTs) of record, nor can they be obtained; the Veteran did not have a maximum exercise capacity test of record; the Veteran did not have pulmonary hypertension documented by an echocardiogram or cardiac catheterization, cor pulmonary, right ventricular hypertrophy, an episode of acute respiratory failure, or outpatient oxygen therapy treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for color blindness have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.9 (2021). 2. The criteria for entitlement to an evaluation of 20 percent, but no higher, for duodenitis with GERD have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.113, 4.114, Diagnostic Code (Code) 7304 (2021). 3. The criteria for entitlement to a compensable evaluation for right lower lung calcified granuloma have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.96, 4.97, Codes 6820, 6828 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1953 to January 1973. He passed away in April 2020. The appellant is his surviving spouse and has been substituted in the current matter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA). The case was remanded in August 2019 and April 2021 for further development; it was also dismissed in May 2020 due to the Veteran's death pending substitution of the appellant. It is once again before the Board. In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After reviewing the record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the issue of service connection for sinusitis to encompass any sinus disability. The appellant indicated that she would like a decision on the issue of service connection for cause of death as soon as possible. See August 2021 statement. As discussed in the last remand, the record reflects she appealed a September 2020 rating decision in which the Agency of Original Jurisdiction (AOJ) denied that issue. Because the legal framework enacted pursuant to the Appeals Modernization Act (AMA) is applicable to that appeal and the appellant requested a Board hearing, the Board is not adjudicating that issue at this time. The appeal will be the subject of a future Board hearing and decision, if otherwise in order. Entitlement to service connection for color blindness. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Congenital defects are not diseases or injuries for purposes of service connection. 38 C.F.R. § 4.9. VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury during service which created additional disability. However, if a defect is subject to superimposed disease or injury, service connection may be warranted for the resultant disability. See VAOPGCPREC 82-90. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). During the Veteran's Board hearing, he testified that his eyesight did not change from the time prior to service to during service. See June 2019 Board hearing. The Board assigns his statement significant probative weight. In May 2021, a VA examiner opined that it was at least as likely as not that the Veteran's color vision was a congenital defect. The examiner noted that color vision defects are inherited conditions and there was no evidence or reported symptoms of acquired ocular pathology that would result in a color defect, nor any condition other than a congenital defect. The Board finds the May 2021 VA medical opinion to be adequate for appellate review. The examiner relied on a review of the file, and he provided a full and detailed rationale. There is nothing in the record that contradicts the examiner's opinion. As a result, the Board assigns the opinion significant probative weight. The preponderance of evidence reflects that the Veteran's color vision was a congenital defect, and he had no other eye disabilities. His lay statement supports that conclusion and there is no contradictory evidence. Thus, service connection is not warranted, and the issue must be denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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). 1. Entitlement to an evaluation in excess of 10 percent for duodenitis with GERD. The Veteran's disability is rated pursuant to Code 7305, which is for a duodenal ulcer. Pursuant to that Code, a 10 percent rating is assigned for mild symptoms, with recurring symptoms once or twice a year. A 20 percent rating is warranted for moderate symptoms, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is warranted for moderately severe symptoms, with symptoms less than severe but with impairment of 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. Finally, a maximum 60 percent rating is warranted for severe symptoms, with 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. 38 C.F.R. § 4.114, Code 7305. While the Veteran is also service connected for GERD, the two disabilities cannot be assigned separate evaluations because doing so would violate the fundamental principle of pyramiding. See 38 C.F.R. §§ 4.14, 4.113, 4.114. A single evaluation is to be assigned under the Code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Regardless, the Board will note the criteria for the Veteran's GERD. The Veteran's GERD would be rated pursuant to Code 7346, which is for a hiatal hernia. Pursuant to that Code, a 10 percent rating is warranted for GERD with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating 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. Finally, a maximum 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. 38 C.F.R. § 4.114, Code 7346. During a December 2016 VA examination, the Veteran reported ongoing reflux and heartburn, but his symptoms were controlled while on medication for treatment. The examiner opined that the Veteran had heartburn and reflux as symptoms of his disability. During a June 2019 Board hearing, he reported getting heartburn or acid indigestion about six times a week and that his symptoms consist of mostly gas. He reported that his symptoms had not changed since his examination in 2016, but his representative asserted that the Veteran was downplaying his symptoms. After the Veteran passed, a June 2021 VA examiner opined that, after review of the record, the Veteran did not have moderate or worse symptoms at the time of the 2016 examination. His anemia was due to his chronic kidney disease. VA and private medical records do not include probative evidence relating to the Veteran's symptoms resulting from his duodenitis with GERD. The Board finds that the evidence most closely approximates duodenitis with GERD with continuous moderate manifestations. Although the Veteran's testimony and the medical evidence reflects mild symptoms instead of moderate, he reported that he had symptoms six times a week, which reflects near-continuous symptoms. When comparing the criteria for a 10 percent ratingmild symptoms with recurring symptoms once or twice a yearto the criteria for a 20 percent ratingcontinuous moderate symptomsthe Board finds that the symptoms more closely approximate continuous moderate manifestations. As his symptoms only approximate continuous moderate manifestations and are mild, they do not approximate the criteria for moderately severe or severe symptoms. Thus, a rating of 20 percent, but no higher, is warranted pursuant to Code 7305. The Board has considered the criteria in Code 7346. His symptoms were only heartburn, gas, and reflux. There is no evidence of epigastric distress with dysphagia (difficulty swallowing), regurgitation, pain of any kind, weight loss, vomiting, or severe impairment of health. Moreover, the June 2021 VA examiner considered the Veteran's anemia a manifestation of his chronic kidney disease rather than his duodenitis with GERD. But even if the Board were to consider the Veteran's anemia, his symptoms most closely approximate the criteria for a 10 percent rating pursuant to Code 7346 due to his limited symptoms. Because the Veteran could not obtain a higher evaluation pursuant to Code 7346, he is properly rated pursuant to Code 7305. Because the Veteran does not meet the criteria for a rating in excess of 20 percent pursuant to either Code 7305 or 7346, an evaluation in excess of that rating must be denied. 2. Entitlement to a compensable evaluation for right lower lung calcified granuloma. The Veteran's right lower lung calcified granuloma is rated pursuant to Code 6820, which is for benign neoplasms of any specified part of the respiratory system. Pursuant to that Code the disability is rated using an appropriate respiratory analogy. 38 C.F.R. § 4.97. The AOJ rated him pursuant to Code 6828, which is for eosinophilic granula of the lung. That Code uses a General Rating Formula for Interstitial Lung Disease (General Formula). Id. Pursuant to the General Formula, a 10 percent rating is warranted for Forced Vital Capacity (FVC) of 75- to 80-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted. A 30 percent rating is warranted for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 60 percent rating is warranted for FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. Finally, a 100 percent rating is warranted for FVC less than 50-percent predicted, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. Id. PFTs are required to evaluate the Veteran's disability except in certain circumstances: when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less, or; the Veteran had pulmonary hypertension documented by an echocardiogram or cardiac catheterization, cor pulmonary, or right ventricular hypertrophy, or; an episode of acute respiratory failure, or; outpatient oxygen therapy treatment. See 38 C.F.R. § 4.96(d). During a December 2016 VA examination, the examiner noted that a recent chest x-ray revealed stable calcified granuloma in the right lower lung. PFT testing was not performed because the Veteran was not available for three months. A June 2021 VA examiner opined that it was not possible to determine the functional severity of the Veteran's right lower lung calcified granuloma based on pulmonary testing or studies because they must be completed in-person. Ultimately, the evidence of record is not sufficient to award a compensable rating. There is no evidence that the Veteran has any conditions that would allow evaluation without PFTs. There are no PFTs of record, to include in private treatment records and VA treatment records. VA fulfilled its duty to assist by requesting private treatment records in November 2019 and by obtaining the June 2021 VA examiner's opinion that PFTs were required to be in-person. The Veteran cannot undergo PFTs because he has passed away. The Veteran and the appellant still ultimately bear some burden of production, 38 U.S.C. § 5107(a), and the evidence is not of record. As the preponderance of evidence is not sufficient to warrant a compensable evaluation, the issue must be denied. The Board again notes that all interstitial lung diseases use the General Formula. Moreover, Code 6828, as a granuloma of the lung, is the most closely approximate disability to the Veteran's service-connected disability. As a result, Code 6828 is the most appropriate respiratory analogy, as required pursuant to Code 6820, and the Veteran is being rated pursuant to the appropriate Code. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability. In June 2021, a VA examiner opined it was less likely than not that the Veteran's right hip pain was related to his service. However, the examiner relied merely on the absence of evidence in service and post-service medical records. As a result, the opinion is inadequate and remand for a new opinion is necessary. 2. Entitlement to service connection for a sinus disability. The Veteran reported sinus symptoms during his Board hearing. See June 2019 Board hearing. In June 2021, an examiner opined that the Veteran did not have a sinus disability but relied merely on the absence of evidence in treatment records. There was no other explanation as to why a sinus disability could not be diagnosed. As a result, the opinion is inadequate and remand for a new opinion is necessary. The matters are REMANDED for the following action: 1. The AOJ should arrange for a VA medical opinion to determine the nature and likely cause of any right hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: For the Veteran's right hip pain with difficulty walking, was it at least as likely as not (50% or greater probability) that such pain with functional impairment was related to his service? Please explain why. If it is not feasible to answer the question, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. A conclusory rationale that is based solely on the fact that the Veteran has passed away or that there is no medical evidence of record will not be deemed adequate. 2. The AOJ should arrange for a VA medical opinion to determine the nature and likely cause of his sinus symptoms. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: Did the Veteran have a sinus disability at any time from September 2016 until his death? Please explain why. If it is not feasible to answer the question, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. A conclusory rationale that is based solely on the fact that the Veteran has passed away or that there is no medical evidence of record will not be deemed adequate. The examiner must discuss the Veteran's report of sinus symptoms during his June 2019 Board hearing. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.