Citation Nr: 21067911 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-13 330 DATE: November 8, 2021 ORDER For the period from May 17, 2011 to February 24, 2021, entitlement to an initial disability rating of 30 percent, but no higher, under Diagnostic Code 7306 (reassigned from Diagnostic Codes 7346-7304) for gastritis and GERD is granted. For the period from February 25, 2021 to present, entitlement to an increased disability rating of 40 percent, but no higher, under Diagnostic Code 7304 for gastritis and GERD is granted. Entitlement to an initial, compensable disability rating for left ear hearing loss is denied. FINDINGS OF FACT 1. For the period from May 17, 2011 to February 24, 2021, the Veteran's gastritis and GERD has been manifested by symptoms that are moderately severe; intercurrent episodes of abdominal pain at least once a month partially relieved by ulcer therapy. 2. For the period from February 25, 2021 to present, the Veteran's gastritis and GERD has been manifested by symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia. 3. The Veteran's left ear hearing has been manifested by hearing acuity of no worse than Level VI in the left ear. CONCLUSIONS OF LAW 1. For the period from May 17, 2011 to February 24, 2021, the criteria for a disability rating of 30 percent, but no higher, for service-connected gastritis and GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7306. 2. For the period from February 25, 2021, the criteria for a disability rating of 40 percent, but no higher, for service-connected gastritis and GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code 7304. 3. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. This hearing was before a now-retired judge. In a May 2021 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. In a June 2021 correspondence, the Veteran indicated that he did not wish to appear at another hearing and requested that the case be considered based on the evidence of record. The Board will therefore proceed. Increased Rating The Veteran seeks increased ratings for service-connected left ear hearing loss and gastritis and GERD. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. 1. Gastritis and GERD The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent for gastritis and GERD. The Veteran's gastritis and GERD is currently rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7304. Under DC 7304, a 10 percent rating is warranted for mild ulcers with recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate ulcers 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 ulcers, 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. A 60 percent rating is warranted for severe ulcers, 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. Relevant to the claim, DC 7306 for marginal ulcer indicates that a 10 percent rating is warranted for mild; with brief episodes of recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate; with episodes of recurring symptoms several times a year. A 30 percent rating is warranted for moderately severe; intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 60 percent rating is warranted for severe; same as pronounced (the criteria for a 100 percent rating) but with less pronounced and less continuous symptoms with definite impairment of health. A 100 percent rating is warranted for pronounced; periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss; totally incapacitating. Relevant to the claim, DC 7346 for hiatal hernia indicates that a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating 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 rating 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. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. a. Period from May 17, 2011 to February 24, 2021 For the period from May 17, 2011 to February 24, 2021, the Board finds the Veteran's gastritis and GERD manifested in infrequent episodes of epigastric distress; pyrosis; reflux; recurring episodes of symptoms that are not severe occurring 4 times or more a year and with episodes lasting 1 to 9 days; abdominal pain that occurs at least monthly and is only partially relieved by standard ulcer therapy, and bloating. An April 2015 VA examination report reflects that the Veteran has infrequent episodes of epigastric distress; pyrosis; reflux; recurring episodes of symptoms that are not severe occurring 4 times or more a year and with episodes lasting 1 to 9 days; and abdominal pain that occurs at least monthly and is only partially relieved by standard ulcer therapy. Additionally, VA treatment records document reports of bloating and reflux. The Board finds this more nearly approximates a 30 percent rating under DC 7306, with symptoms that are moderately severe; intercurrent episodes of abdominal pain at least once a month partially relieved by ulcer therapy. A rating in excess of 30 percent under DC 7306 is not warranted unless the evidence shows periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss. The evidence in this case does not support such findings. VA treatment records indicate that the Veteran actually gained a significant amount of weight during the appeal period. Further, the Veteran denied and clinical examinations by treating providers did not reveal vomiting, melena or hematemesis during the appeal period. The Board notes that the Veteran reported melena, or bloody stools, during the November 2019 Board hearing. However, the Board finds that this testimony is outweighed by the remaining evidence of record. VA treatment records close in time to the November 2019 Board hearing do not document any reports or findings of bloody stools, or melena. Additionally, it is documented in VA treatment records that the Veteran frequently denied melena or hematochezia. Further, treating VA providers expressly noted that there were no findings of melena or hematochezia. To the extent that the Veteran may receive private treatment for his gastrointestinal symptoms, the Board notes that he has not provided copies of any records or an authorized release of any records. A claimant, in pursuing a claim, has the responsibility to cooperate in the development of all facts pertinent to his claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran did not cooperate by providing copies of private records or an authorized release, the Board must adjudicate the claim based on the existing record. Accordingly, the Veteran's November 2019 testimony of bloody stools is outweighed by the weight of the remaining evidence, which includes several VA treatment records that do not contain reports or findings of bloody stools, melena, or hematochezia during this appeal period. The Board notes that under Diagnostic Code 7307, gastritis shall be rated based on the underlying condition. In this case, the evidence demonstrates that the symptoms, impairments, and clinical findings of the Veteran's gastritis are more accurately captured by the criteria found under Diagnostic Code 7306 for rating marginal ulcers. Specifically, the Veteran's gastritis and GERD has manifested in episodes of abdominal pain partially relieved by ulcer therapy for the period from May 17, 2011 to February 24, 2021. Although the Veteran has not been found to have a marginal ulcer, the predominant disability picture of the Veteran's gastritis is most accurately captured by the criteria set forth under Diagnostic Code 7306 as such criteria specifically contemplate the Veteran's symptomatology and impairment. The Board has also considered other DCs, but finds that a higher rating is not warranted under different Diagnostic Codes. A rating in excess of 30 percent is not warranted under DC 7304 as there is no evidence of periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Likewise, a rating in excess of 30 percent is not warranted under DC 7346 as there is no evidence of vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. In light of the above, the Board finds that for the period from May 17, 2011 to February 24, 2021, the Veteran's gastritis and GERD manifested in infrequent episodes of epigastric distress; pyrosis; reflux; recurring episodes of symptoms that are not severe occurring 4 times or more a year and with episodes lasting 1 to 9 days; abdominal pain that occurs at least monthly and is only partially relieved by standard ulcer therapy, and bloating. This more nearly approximates symptoms that are moderately severe; intercurrent episodes of abdominal pain at least once a month partially relieved by ulcer therapy, which warrants a rating of 30 percent, but no higher, under DC 7306 for the period from May 17, 2011 to February 24, 2021. b. Period from February 25, 2021 to Present For the period from February 25, 2021 to present, the Board finds the Veteran's gastritis and GERD manifested in continuous abdominal pain, transient nausea that occurs 4 times or more per year and with episodes lasting for 1-9 days, reflux/pyrosis, mild anemia, and inability to eat spicy foods, red meat, or sodas. A February 2021 VA examination report reflects that the Veteran has continuous abdominal pain and transient nausea that occurs 4 times or more per year and with episodes lasting for 1-9 days. The Veteran reported additional symptoms such as reflux/pyrosis and inability to eat spicy foods, red meat, or sodas. Additionally, a February 2021 VA treatment record noted laboratory findings of mild anemia. The Board finds this more nearly approximates a 40 percent rating under DC 7304, with symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia. A rating in excess of 40 percent under DC 7304 is not warranted unless the evidence shows symptoms that are severe; 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. The evidence in this case does not support such findings. VA treatment records indicate that the Veteran denied and/or clinical examinations by treating providers did not reveal vomiting, melena, hematemesis, or changes in stool during the appeal period. To the extent that anemia was noted in a February 2021 VA treatment record, it was determined to be mild, with no indications that it was productive of definite impairment of health. Further, VA treatment records do not document and the Veteran did not report weight loss. For these reasons, a rating in excess of 40 percent is not warranted under DC 7304. As noted above, the Veteran reported melena, or bloody stools, during the November 2019 Board hearing. However, the Board finds that this testimony is outweighed by the remaining evidence of record. VA treatment records indicate that the Veteran denied melena or hematochezia. Further, treating VA providers expressly noted that there were no findings of melena, hematochezia, or changes in color of stool. To the extent that the Veteran may receive private treatment for his gastrointestinal symptoms, the Board notes that he has not provided copies of any records or an authorized release of any records. A claimant, in pursuing a claim, has the responsibility to cooperate in the development of all facts pertinent to his claims, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran did not cooperate by providing copies of private records or an authorized release, the Board must adjudicate the claim based on the existing record. Accordingly, the Veteran's November 2019 testimony of bloody stools is outweighed by the weight of the remaining evidence, which includes several VA treatment records that do not contain reports or findings of bloody stools, melena, or hematochezia during this appeal period. The Board notes that under Diagnostic Code 7307, gastritis shall be rated based on the underlying condition. In this case, the evidence demonstrates that the symptoms, impairments, and clinical findings of the Veteran's gastritis are more accurately captured by the criteria found under Diagnostic Code 7304. Specifically, the Veteran's gastritis and GERD has manifested in symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia for the period from February 25, 2021 to present. Accordingly, the predominant disability picture of the Veteran's gastritis is most accurately captured by the criteria set forth under Diagnostic Code 7304 as such criteria specifically contemplate the Veteran's symptomatology and impairment. The Board has also considered other Diagnostic Codes, but finds that a higher rating is not warranted under different Diagnostic Codes. A rating in excess of 40 percent is not warranted under DC 7306 as the evidence does not show symptoms that are severe; same as pronounced (totally incapacitating periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss) with less pronounced and less continuous symptoms with definite impairment of health. To the extent that the February 2021 VA examination found continuous abdominal pain, there are no findings that it was unrelieved by standard ulcer therapy, or accompanied with periodic vomiting, recurring melena or hematemesis, or weight loss. Accordingly, the Veteran's overall disability picture, as discussed above, more nearly approximates symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia. Additionally, a rating in excess of 40 percent is not warranted under DC 7346 as the evidence does not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Though the evidence does reveal pain with mild anemia, there is no evidence of vomiting, material weight loss and hematemesis or melena with moderate anemia. As previously noted, VA treatment records note only mild anemia. There is no further evidence of complications related to anemia that would establish that it is productive of severe impairment of health. Accordingly, the Veteran's overall disability picture, as discussed above, more nearly approximates symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia. In light of the above, the Board finds that for the period from February 25, 2021 to present, the Veteran's gastritis and GERD manifested in symptoms that are moderately severe, less than severe but with impairment of health manifested by anemia. This more nearly approximates a rating of 40 percent, but no higher, under DC 7304 for the period from February 25, 2021 to present. 2. Left Ear Hearing Loss The Veteran contends that he is entitled to an initial, compensable rating for service-connected left ear hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). An April 2015 VA examination reveals that the Veteran reported he had trouble understanding speech from coworkers. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 2015 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 30 30 25 35 30 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the left ear. The non-service-connected right ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85(f). Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2021 VA examination reveals that the Veteran reported difficulty hearing what people say. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: January 2021 HERTZ 1000 2000 3000 4000 Avg CNC LEFT 50 60 55 55 55 100 Applying the results to Table VI, the findings yield a numeric designation of Level VI in the left ear. The non-service-connected right ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85(f). Entering the resulting bilateral numeric designation of Level I for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report that he has difficulty understanding speech. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.