Citation Nr: 21067586 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 15-06 694A DATE: November 4, 2021 ORDER An initial rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's GERD did not more nearly approximate symptoms that were productive of considerable impairment of health. 2. The evidence does not show that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining and/or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7314, 7346. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.16 (a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from May 1988 to March 1991. The Veteran filed a claim in October 2005 for service connection for GERD, which was denied in a June 2006 rating decision. The matter went to the Board of Veterans' Appeals (Board) in February 2009 and was remanded for further development. The August 2010 rating decision on appeal was issued after the Board remand and granted service connection for GERD. The Agency of Original Jurisdiction (AOJ) assigned an initial rating of 10 percent with an effective date of October 24, 2005, the date of the Veteran's claim. The Veteran timely perfected his appeal to the Board. This matter has been before the Board three more times in July 2013, June 2018, and December 2020 for further development. The Board is satisfied that there has been at least substantial compliance with the remand directives. The Board also notes that the Veteran's TDIU was denied in a September 2020 rating decision. While the Veteran has not appealed this decision, a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue remains on appeal before the Board Increased Rating The Veteran's claim seeking service connection for GERD was received in October 2005. Service connection was granted with a 10 percent rating as of the date the claim was received. The Veteran appealed the assigned rating. The Veteran's GERD is rated pursuant to Diagnostic Code (DC) 7314-7346. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated DC indicates that the Veteran's GERD is rated, by analogy to DC 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. For the reasons that follow, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity. The Veteran has been afforded several VA examinations during the appeals period. The Veteran first underwent an examination in July 2009, at which GERD was diagnosed. The Veteran reported that he began developing acid reflux in or around 2000 and was diagnosed with GERD after an endoscopy. The examiner noted symptoms of nausea less than weekly, precipitated by certain foods and after dinner, substernal pain (less than weekly, occasional of moderate severity), heartburn or pyrosis (less than weekly), regurgitation (less than weekly). No vomiting, dysphagia, hematemesis or melena nor significant weight loss or malnutrition were reported. The Veteran underwent a second examination in April 2014, at which time the examiner diagnosed GERD and gastroparesis. The Veteran reported symptoms of abdominal pain and reflux. The examiner noted that the Veteran's GERD symptoms impacted his ability to work due to abdominal pain and bleeding. At a September 2020 examination, the Veteran reported experiencing symptoms of reflux and intermittent chest discomfort. The examiner indicated that the Veteran's GERD caused some sleep disturbances. The Veteran underwent another examination in December 2021 at which time the examiner confirmed a diagnosis of GERD with fatty liver/hepatomegaly. The examiner indicated that the Veteran has acid in his stomach, regurgitation with pain in chest, and has to watch what he eats, and sleep with his head raised. The examiner further indicated that the Veteran has symptoms of reflux, regurgitation, sleep disturbances caused by esophageal reflux (four or more times per year, less than one day in duration). However, the examiner failed to notate any further symptoms, including nausea or dizziness and in so doing failed to discuss such symptoms as noted in the Veteran's medical records. The Veteran was afforded a VA examination in August 2021 where he was diagnosed with GERD with fatty liver hepatomegaly. The Veteran reported that this condition began 15 years earlier and that he currently experienced symptoms of reflux, regurgitation, chest pain, and nausea. The examiner noted symptoms of reflux, regurgitation, sleep disturbance (four or more times per year, less than one day in duration); nausea (four or more times per year, less than one day in duration). The examiner noted that there was no impact from the condition on his ability to perform occupational functioning and ordinary activities reported but indicated that some nausea, reflux, regurgitation, chest pain, sleep disturbances due to GERD would impact his ability to work. Despite diagnoses of a fatty liver and gallbladder attacks in the VA treatment records, VA examinations showed no symptoms of liver or gallbladder conditions. VA treatment records indicate intermittent symptoms of abdominal pain, nausea, reflux, and heartburn symptoms throughout the appeals period. For example, a March 2006 treatment note indicates that the Veteran had severe reflux with no abdominal pain, nausea, vomiting, or hematemesis. October 2009, March 2010, April 2010, and June 2010 treatment notes show the Veteran reporting symptoms of on and off nausea, but no abdominal pain, nausea, vomiting, or hematemesis. A December 2009 treatment note showed symptoms of nausea coupled with vomiting, and constipation. VA treatment notes show that in approximately March 2015, the Veteran began to experience vertigo and nausea. He reported that the dizziness or vertigo had been present for the last two weeks and usually occurred in the morning. He reported being unable to eat because he would vomit. In February 2017, the Veteran reported that he was experiencing dizziness triggered after migraines. He indicated that he was experiencing nausea all week long with no vomiting. The Veteran reported a separate diagnosis of Mal de Debarquement syndrome, diagnosed at UCLA. No further records are available regarding treatment for this condition and no indications in the record indicate that this increase in nausea, coupled with dizziness is related to his service-connected GERD, but instead if related to another non-service-connected condition. Private treatment records show that the Veteran reported symptoms of reflux, epigastric pain, abdominal pain, nausea, intermittent vomiting, and heartburn. For example, a February 2006 treatment note shows the Veteran reported symptoms of recurrent GERD including reflux and intermittent epigastric pain. A September 2009 treatment note shows symptoms of abdominal pain, nausea, and diarrhea. The Veteran denied vomiting, constipation, or blood in the stool. Private treatment records from 2010 indicate "episodic but persistent symptoms of nausea and vomiting." See Private Treatment Note, February 23, 2010, received by VA March 6, 2014. A March 2010 note indicates that the Veteran's nausea remains the same, worse 15 days out of 30 days, causing him to miss work for two days. The Veteran indicated no symptoms of abdominal pain, vomiting, nor hematemesis. An April 2011 treatment note shows a working diagnosis of GERD and cyclical vomiting where the Veteran gets episodes of vomiting lasting for four to five days and sometimes up to seven days and then he has a good period. Treatment notes show symptoms of heartburn throughout the appeals period including in March 2006, November 2009, October 2013, and March 2014. Medical evidence submitted shows that the Veteran experiences episodic and recurrent symptoms of nausea, heartburn, reflux, and abdominal pain. The Board finds that the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 7346. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While the Veteran has reported experiencing symptoms of pyrosis (heartburn), and some substernal pain, there is no evidence that these symptoms are, or have been beyond acute flare-ups, productive of "considerable impairment of health." Thus, the Veteran's GERD did not more nearly approximate persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Therefore, an initial rating of 30 percent under DC 7346 is not warranted. TDIU The Veteran seeks a TDIU. He indicates that he has been unemployed since April 2017. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. "[U]nable to secure and follow substantially gainful employment" in 38 C.F.R. § 4.16 (a) comprises both economic and noneconomic components, which required consideration of a wide range of factors, and one is a veteran's ability to perform sedentary activities. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (also holding that Social Security Administration (SSA) regulations defining "sedentary" are not binding on VA). Withers v. Wilkie, 30 Vet. App. 139, 148 (2018) held that while 38 C.F.R. § 4.16 "does not make the concept of sedentary work an explicit TDIU factor" if TDIU is denied because "a veteran is capable of sedentary work" this must be explained in the context of that case." Thus, while not a legally governing consideration, the ability to perform sedentary work can be a relevant factor and a finding that sedentary employment is possible can be determinative when explained in relation to past education and occupational history. See id. However, neither VA nor the Court has explicitly defined the term "sedentary employment." Withers, 30 Vet. App. at 148. The Board finds that sedentary employment is the common meaning in society of non-physical, white collar, office-type work. The Board envisions potential non-physical employment to encompass administrative, managerial or other forms of employment that would not require the Veteran to spend a significant amount of time standing, ambulating or physical activity requiring lifting, bending, walking, or standing for long periods of time, and would permit the Veteran to take periodic breaks. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" is that employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment will not be considered substantially gainful employment." 38 C.F.R. § 4.16 (a). The Veteran has the following disabilities that are service connected: degenerative disc disease (DDD), L1-2 with narrowing, L5-S1 (10 percent from March 12, 1991; 40 percent from May 25, 2004); bilateral pes planus (noncompensable from March 12, 1991; 30 percent from March 14, 2019); onychomycosis (noncompensable from March 11, 1997; 10 percent from May 5, 2004); chondromalacia patella right knee (10 percent from May 25, 2004); chondromalacia patella left knee (10 percent from October 24, 2005); GERD with fatty liver hepatomegaly associated with DDD (10 percent from October 24, 2005); tinnitus (10 percent from February 27, 2008); sciatica right lower leg associated with DDD (10 percent from July 16, 2009). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more during the pendency of the claim. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that the preponderance of the evidence is against the claim of entitlement to a TDIU because the Veteran is capable of non-physical work. In May 2020 the agency of original jurisdiction (AOJ) requested that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability in support of his claim. As of date, VA has not received a completed VA Form 21-8940 from the Veteran. Vocational Rehabilitation and Education (VR&E) records show that the Veteran has a high school diploma and has been enrolled in college classes part time on and off for many years, including 1993 to 2000, 2003, 2007, 2008, 2009. It is unclear whether the Veteran has completed his degree. Records indicate that he sought this degree to obtain a management position in his preferred career to avoid physical labor. The Veteran had a military occupational specialty (MOS) was a Construction Inspector. The Veteran's work history after the military is unclear. In 2006, the Veteran was working as a Patient Services Assistant with the VA Bakersfield Outpatient Clinic. This was a sedentary position that the Veteran reported taking as the result of his wife's health issues that required him to become the sole provider for his family. In 2010, records indicate that the Veteran was working at VA Bakersfield National Cemetery. In January 2010, the Veteran received a letter from this employer indicating that he had used a large amount of sick leave. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his back disability, sciatic nerve condition, and knee disabilities. An April 2014 VA examination indicated that the Veteran's knee disability limits standing and walking due to pain. A VA back examination from the same month showed that the Veteran's back disability limited his ability to stand, bend, lift, and push. VA treatment records show that the Veteran reports increased back pain. For example, in an April 2020 treatment note the Veteran indicated that his lower back pain was worsening, resulting in frequent exacerbations. The Veteran was noted to use a cane for walking and was requesting prosthetic referral for a back brace. Of note, in approximately March 2015, the Veteran began to experience vertigo and nausea. Medical records indicate that these symptoms are due either to Mal de Debarquement syndrome or an inner ear condition, neither of which are service connected. In March 2017, VA treatment records show that the Veteran reported continued problems with nausea and vertigo all day. He reported experiencing trouble working this way because when he would stand up, the room would start spinning, and if he remained sitting, he was nauseated all the time. A January 2018 VA treatment note shows that the Veteran was still experiencing chronic dizziness and nausea. The medical professional noted that the Veteran's symptoms had worsened over time and were now functionally debilitating; as of April 2017, Veteran has left employment due to symptoms of medical condition. Although no clear diagnosis or etiology for this condition has been indicated in the medical records available, the Veteran's symptoms do not seem to be related to a service-connected disability. The medical professionals have suggested several potential causes for the symptoms and noted that he has been participating in a study at UCLA since 2015. However, the treatment records do not suggest that these serious symptoms are a manifestation of the Veteran's service connected GERD. Given the forgoing, the Board acknowledges that the Veteran's current service-connected conditions would reasonably cause occupational limitations-particularly in employment that is physically intensive. However, the preponderance of the evidence is against a finding that his service-connected disabilities alone are severe enough to prevent him from securing or following substantial employment that is relatively non-labor-intensive and does not require repeated heavy and/or repetitive lifting, prolonged sitting, standing, etc. The Veteran's service-connected disabilities limit his ability to take part in work that requires strenuous activities and constant lifting, bending, walking, or standing for long periods of time. Based on the evidence of record, including that the Veteran was able to complete college level courses which would require sitting at a computer or desk and his past sedentary work history, the Board finds no readily apparent reason why he would be unable to secure and follow substantially gainful employment performing clerical work or other office work, taking necessary precautions (e.g., avoiding lifting heavy items) and while taking regular breaks, as needed. There is no evidence of record showing that he would be incapable of a variety of forms of employment that require some degree non-physical work that is consistent with his work history and educational experience, based solely on limitations imposed by his service connected disabilities. Rather, it seems that to the extent the Veteran in unable to work it is the result of his non service connected condition that manifests in nausea and dizziness. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.