Citation Nr: 21075923 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-28 537 DATE: December 21, 2021 ORDER Entitlement to service connection for dysphagia is granted. Entitlement to a higher initial rating of 60 percent, but no higher, for duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with gastrointestinal reflux disorder (GERD) is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's dysphagia is related to service. 2. For the entire rating period on appeal, the Veteran's service-connected duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD, has been manifested by severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent melena, and anemia and weight loss productive of definite impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for dysphagia have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304(f)(3). 2. The criteria for an initial rating of 60 percent, but not higher, for service-connected duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7305. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1964 to May 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims in October 2018 and in May 2021. Service Connection - Dysphagia Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). First, the Veteran has a current diagnosis of dysphagia. See July 2021 VA Sinusitis/Rhinitis and Other Conditions Disability Benefits Questionnaire (DBQ). Therefore, the first element of service connection, a current disability, has been met. Next, the Board finds that the second element, an in-service incurrence, has been met. The Veteran contends that in service, he began experiencing dysphagia symptoms in service. See, e.g., June 2016 Veteran's Statement. The Veteran is competent to provide this information on when he began experiencing these symptoms because they come through his senses. Moreover, the Board finds no reason to find these statements not credible. In addition, the Veteran's service treatment records show many throat-related complaints. See Service Treatment Records. Therefore, the Board finds that the Veteran's lay statements are corroborated. Finally, turning the nexus element, the Board finds persuasive a positive July 2021 VA medical opinion, in which the July 2021 VA examiner opined that the Veteran's dysphagia is related to the Veteran's service. See July 2021 VA medical opinion. The Board finds this opinion persuasive because it is based on a review of the claims file and the Veteran's lay statements, and is supported by a medical explanation that is consistent with the record and cited medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. Thus, considering the probative evidence, the Board finds that the evidence supports the granting of service connection for dysphagia. Accordingly, the claim for service connection for dysphagia is granted. Initial Rating Duodenal Ulcer The Veteran seeks a higher initial rating for his service-connected duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD. The Veteran's service-connected duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD is rated as 20 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7305. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under Diagnostic Code 7305, a 20 percent rating is warranted for moderate duodenal ulcer, manifested by 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 duodenal ulcer, defined as 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 maximum schedular rating of 60 percent is warranted for severe duodenal ulcer, with symptoms consisting of pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, and manifestations of anemia and weight loss productive of definite impairment of health Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just." 38 C.F.R. § 4.6. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. 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. As the Veteran is appealing the original assignment of a disability evaluation following the award of service connection, the entire appeal period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Turning to the evidence, in an April 2015 treatment note, the Veteran was assessed as having poorly controlled GERD with altered GI anatomy that may be contributing to his increased nighttime symptoms and aspiration. In May 2015, the Veteran was afforded a VA examination for esophageal conditions, which included GERD and hiatal hernia. At that time, the Veteran reported that he had to watch what he ate, could not eat hot foods, and indicated that he alternated between diarrhea and constipation. The VA examiner noted that the Veteran had current diagnoses of GERD, hernia hiatal, and esophagitis and that his symptoms included pyrosis, reflux, and regurgitation. Additionally, the VA examiner assessed that the Veteran's GERD was clinically mild at that time and that the Veteran's disabilities did not impact his ability to work. In May 2015, the Veteran was also afforded a VA examination for stomach and duodenal conditions. The VA examiner noted that the Veteran took continuous medication for his duodenal ulcer, postgastrectomy syndrome, and bile reflux gastritis. The VA examiner also noted that the Veteran had symptoms that recurred four or more times per year and lasted for less than one day but assessed that those symptoms were not severe. Additionally, the VA examiner assessed that the Veteran's post gastrectomy syndrome was productive of mild infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. However, the VA examiner also assessed that the Veteran had continuous abdominal pain that was only partially relieved by standard ulcer therapy. In March 2016, the Veteran stated that his GERD caused terrible symptoms that prevented him from being normal. In June 2016, the Veteran stated that he had lost 20 pounds during the winter, which he gained back in the summer. The Veteran also reported that he was given supplements to keep the anemia away but still had to be carefully monitored by VA doctors and given blood transfusions to get his blood levels back to normal. In July 2016, a VA dietician noted that the Veteran did not adhere to his honey-thick liquids and advanced dysphagia diet. The dietician assessed that the Veteran was a high aspiration risk and a high likelihood of continuing to develop pneumonia if he continued to eat and drink. Additionally, the dietician reported that the Veteran's weight continued to decline and that his nutrition status was moderately compromised. In October 2016, it was noted that the Veteran had been placed on antidepressants the prior summer due to losing a significant amount of weight. In December 2016, the Veteran reported that weight loss had prompted a J-tube placement. In January 2018, it was noted that the Veteran had significant and dramatic weight loss the year prior due to dysphagia. In October 2019, the Veteran was afforded a VA examination for esophageal conditions. At that time, the Veteran reported the following: that his GERD symptoms awakened him every night and he took Tums to help him return to sleep; an instance of water brash symptoms two months prior to the examination; GERD symptoms during that day for which he took hydrocodone for pain; and that he regurgitated certain food substances. The VA examiner assessed that the Veteran's symptoms included: reflux; sleep disturbance due to esophageal reflux which occurred over four times per year for less than a day; and an inability to lay flat due to GERD symptoms. However, the VA examiner noted that the Veteran's prior EGDs showed a normal esophagus which did not correspond with the frequency and duration of the Veteran's reported symptoms. Further, the VA examiner reported that he believed the Veteran's weight loss was due to acute hospitalization for pneumonia (PNA), other diagnoses, or COPD. In October 2019, the Veteran was also afforded a VA examination for stomach and duodenal conditions. At that time, the Veteran reported the following: he watched what he ate to prevent a sore stomach; he ate small meals and had symptoms of early satiety; he had continued weight loss and occasional nausea; he took MiraLax as needed for constipation; and, he had abdominal cramping in cold weather. Additionally, the Veteran reported an inability to keep things down six months prior to the examination; the VA examiner noted that he was hospitalized for PNA during that time and had no vomiting since. The VA examiner reported that the Veteran had recurrent symptoms four or more times per year for less than a day. The VA examiner also reported that the Veteran's symptoms included periodic abdominal pain that was only partially relieved by standard ulcer therapy and transient nausea that occurred four or more times per year and lasted less than one day. Further, the VA examiner noted that the Veteran's postgastrectomy syndrome was manifested by mild and infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. The VA examiner noted that the Veteran did not have anemia or weight loss. However, in the remarks the VA examiner stated that he believed the Veteran's weight loss was due to acute hospitalization for pneumonia (PNA), other diagnoses, or COPD. Finally, the VA examiner assessed that the Veteran's disability impacted his ability to work because he was unable to lay flat due to his GERD symptoms. The Veteran underwent another VA Esophageal Conditions examination in July 2021. The examiner confirmed diagnoses of hiatal hernia with GERD associated with duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis. The symptoms include dysphagia, reflux, sleep disturbance caused by esophageal reflux (4 or more times per year, with duration of less than 1 day). The Veteran underwent another VA Stomach and Duodenal Conditions DBQ in July 2021. The examiner confirmed diagnoses of duodenal ulcer, postgastrectomy syndrome, bile reflux gastritis, B12 deficiency. The Veteran's current symptoms are dysphagia, reflux, periodic abdominal pain, intermittent diarrhea and constipation, transient nausea, mild vomiting and stomach cramping. He has mild postgastrectomy syndrome that is mild; infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A September 14, 2021 VA addendum opinion states it is at least as likely as not that the Veteran's anemia was related to his service-connected GI conditions. Furthermore, the Veteran demonstrated Hgb of 11.3 on October 28, 2016. The Veteran takes continuous Vit B12, this is secondary to his multiple stomach and GI surgeries (is due to a failure of separation of vitamin B12, from protein foodstuffs and to a failure of absorption of crystalline vitamin B12 in the presence of intrinsic factor). Furthermore, weight loss and inability to maintain weight would be directly correlated to the Veteran's food intolerance related to his multiple GI surgeries, of note his J tube is no longer present. A September 23, 2021 VA addendum opinion states the Veteran has maintained a stead weight from 2016-2021 with a weight range from 156 to 166.8. The 10 lb. weight loss was at least as likely as not related to the Veteran's manifestation of, or otherwise caused by, his service-connected gastrointestinal disability, even if the condition has since resolved during the appeal period. Weight loss and inability to maintain weight would be directly correlated ot the Veteran's food intolerance related to his multiple GI surgeries. Based on the foregoing, and after a careful and thorough review of the pertinent medical and lay evidence, the Board finds that the Veteran's symptoms duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD most nearly approximate the rating criteria for a 60 percent evaluation under Diagnostic Code 7305. Throughout the relevant period on appeal, the Veteran exhibited severe symptoms of pain only partially relieved by standard ulcer therapy; periodic vomiting; anemia; and weight loss productive of definite impairment of health. See, e.g., May 2015 VA examination; October 2019 VA examination; September 2021 VA addendum opinions. Thus, based on the foregoing, the Board finds that a higher initial rating of 60 percent, but no higher, for duodenal ulcer, post gastrectomy syndrome, bile reflux gastritis and hiatal hernia with GERD is granted. The Board notes that ratings in excess of 60 percent are not available under Diagnostic Code 7305. Therefore, the Board finds that an increased rating in excess of 60 percent for the Veteran's service-connected gastrointestinal disability is not warranted under Diagnostic Code 7305. Moreover, as noted above, a separate compensable rating for GERD, hiatal hernia, and/or gastritis is not warranted in this case as 38 C.F.R. § 4.114 expressly prohibits ratings for these disabilities to be combined with the rating for the duodenal ulcer. The schedule of ratings for the digestive system, to include Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. Thus, to the extent that the Veteran's GERD, hiatal hernia, and gastritis symptoms are a progression of his service-connected duodenal ulcer, additional separate ratings cannot be assigned under Diagnostic Codes 7307 and 7346. The Board does not find that the Veteran's duodenal ulcer would be more appropriately rated under a different diagnostic code as the currently applied code directly contemplates the Veteran's disability. See Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015) (holding that, as a matter of law, Diagnostic Code 5284 does not apply to the eight other foot conditions specifically listed in § 4.71a, and so listed conditions could not be rated by analogy under that Diagnostic Code). The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Further, 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, supra. Additionally, the Board has considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current employment status is unknown. The Veteran has also not alleged, and the record does not suggest, that he is unable to obtain and maintain employment due solely to his service connected doudenal ulcer. As such, a Rice claim is not raised. Accordingly, the Board finds that the preponderance of the evidence is for the assignment of an initial 60 percent rating, but not higher, for duodenal ulcer; to that extent, the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.