Citation Nr: 21069568 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-43 774 DATE: November 18, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for dysphagia is granted. FINDING OF FACT The Veteran's dysphagia disability picture more closely approximates severe stricture of the esophagus. CONCLUSION OF LAW For the entirety of the rating period on appeal, the criteria for a 50 percent rating, but no higher, for dysphagia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.114, Diagnostic Code (DC) 7203. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the claim for increased rating for dysphagia for additional development. On review, the Board finds substantial compliance with its October 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Dysphagia The Veteran's dysphagia is currently rated 30 percent under 38 C.F.R. § 4.114, DC 7203, stricture of the esophagus. He contends that a higher rating is warranted. Dysphagia is rated under DC 7203, which rates stricture of the esophagus. DC 7203 assigns a 30 percent rating for moderate stricture, a 50 percent rating for severe stricture (permitting liquids only), and an 80 percent rating for stricture permitting passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, DC 7203. On review of the evidence, both lay and medical, the Board finds that the criteria for a 50 percent rating, but not higher, for his dysphagia are met. Turning to the evidence, three statements from the Veteran's mother- and father-in-law, his wife, and his daughter, described the Veteran's difficulty with eating foods, sometimes resulting in vomiting. See September 2011 Buddy Statement. A statement was also provided by the Veteran stating that he typically must induce vomiting and sometimes he must stop eating solid foods and finish with liquids only. See May 2018 Correspondence to VA. An October 2011 VA esophagram revealed mild narrowing of the distal 1.5 centimeters of the esophagus with a liminal diameter of 7 millimeters. It was noted the Veteran was given a barium tablet which was not seen to pass the mild narrowing. In a November 2011 VA compensation examination, the Veteran reported that a lot of the food he eats gets "stuck." The examiner indicated the symptoms at that time were dysphagia, with no epigastric distress, and recurrent vomiting. The examiner also noted the Veteran's symptoms were moderate, described by the Veteran as he must be careful with what he eats and must cut his food into small pieces. In the August 2017, the Veteran provided a statement describing his symptoms, which included lack of a normal life due to difficulties with meals, pain, vomiting, and costochondritis. He asserted severe impairment of his health, specifically noting his eyes are bloodshot from capillaries being strained in his eyes. VA provided the Veteran another compensation examination in April 2018. It was noted the Veteran was taking continuous medication for his dysphagia. The examiner indicated there were no symptoms other than dysphagia, and the esophageal stricture was mild in nature. In conjunction with the October 2019 Board remand, VA provided the Veteran with another compensation examination in March 2020. At the time of the examination, the Veteran stated that food gets stuck in his throat, though, "I can have good or bad days," stating it did not happen on a daily basis but when it does it could happen three times in a day. Once food is stuck, it could take minutes or the whole day to go down. He explained that it either goes down on its own, a drink may push it down, or it does not go down and results in pain and the need to induce vomiting. Sometimes, he is unable to finish his meal due to the obstruction. The Veteran's dysphagia is treated with continuous medication. In regard to symptoms, the examiner noted dysphagia, substernal pain, vomiting over four times per year lasting less than one day, and hematemesis once per year lasting less than one day. The examiner noted the Veteran had mild narrowing of the distal esophagus, but the symptoms were more consistent with a moderate stricture. On review, the Board finds that the evidence of record is at least evenly balanced as to whether the Veteran's dysphagia disability picture more closely approximates severe stricture of the esophagus. While the Veteran is able to swallow some solids, his disability requires him to modify the way he eats and what he eats on a daily basis. His symptoms and manifestations include not only difficulty swallowing and the size of the narrowing of the distal esophagus, but also the intermittent episodes of food becoming lodged in the throat, which causes severe coughing and intermittent vomiting with resultant bloodshot eyes, and yearly hematemesis. Taken as a whole, the Veteran's disability picture results in more than moderate impairment, and as such, the reasonable doubt caused by this relative equipoise in the evidence must be resolved in favor of the Veteran. Accordingly, a rating of 50 percent, but no higher, for the Veteran's dysphagia is warranted under DC 7203. 38 U.S.C. § 5107 (b): 38 C.F.R. § 4.3. However, the evidence of record does not suggest that the Veteran's disability only allows the passage of liquids with marked impairment of general health, and thus do not more closely approximate an 80 percent rating. 38 C.F.R. § 4.114, DC 7203. The Board has considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show that the symptoms associated with the Veteran's dysphagia present an exceptional disability picture. Comparison between his symptoms (dysphagia, intermittent episodes of lodged food in throat which induces coughing and vomiting with resultant straining causing bloodshot eyes, and yearly hematemesis) and the criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology during the appeal period. Moreover, the Veteran's substernal pain is already being compensated by the separate rating already assigned for costochondritis. Thus, the Board need not consider whether the disability have caused marked interference with employment during the appeal period. Further, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran reported in a September 2018 VA treatment record that he was employed and does not assert the inability to maintain his current job due to his service-connected disabilities. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. (Continued on the next page) Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.