Citation Nr: 21005619 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-02 414 DATE: February 2, 2021 ORDER A compensable disability rating for hemorrhoids is denied. A rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. A rating in excess of 30 percent for dysthymic disorder, prior to September 16, 2011, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record reflects that the Veteran’s hemorrhoids was manifested by mild to moderate symptomology; but not large or thrombotic, irreducible, or with excessive redundant tissue, evidencing frequent recurrences. 2. The preponderance of the evidence of record reflects that the Veteran’s GERD was manifested by regurgitation, vomiting, and heartburn in the substernal area and no more than infrequent epigastric distress; but his symptoms were not productive of a considerable impairment of health during the period on appeal. 3. Prior to September 16, 2011, the severity, frequency, and duration of the Veteran’s dysthymic disorder symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7336. 2. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. 3. The criteria for a rating in excess of 30 percent for dysthymic disorder, prior to September 16, 2011, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to April 2004. He died in August 2019. The appellant, his surviving spouse, was granted substitution and this appeal has therefore been continued. See June 2020 Notification Letter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017 and August 2018, the Board remanded the claims for further development. During the pendency of the appeal, in a June 2020 rating decision, the RO increased the rating for dysthymic disorder to 100 percent, effective September 16, 2011. As a 100 percent rating is the maximum assignable rating, the period after September 16, 2011, is not presently being considered, and the claim has been recharacterized. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a compensable evaluation for hemorrhoids The Veteran contended that the severity of his hemorrhoids condition was underrated. See December 2020 Appellate Brief. His service-connected hemorrhoid disability is evaluated as noncompensable (0 percent disabling) under 38 C.F.R. § 4.114, Diagnostic Code 7336. Under Diagnostic Code 7336, a noncompensable evaluation is assigned for hemorrhoids that are mild or moderate. A 10 percent evaluation is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent evaluation is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. The relevant evidence in this appeal includes October 2010 and November 2013 VA examination reports, and VA and private treatment records. The Board’s review of the VA treatment records does not reveal any information or evidence regarding the severity of the Veteran’s hemorrhoids disability and, as such, they will not be discussed in this decision. During an October 2010 VA examination, the Veteran alleged worsening of his hemorrhoid symptoms. He reported daily and intermittent bleeding with bowel movements attributed to constipation from internal and external hemorrhoids, and taking medication for constipation. The examiner noted no reports of thrombosis and no surgeries. On physical exam, there was no evidence of internal or external hemorrhoids, palpitation, or testicular atrophy. The Veteran’s prostate was non-nodular and not enlarged. The examiner noted that there were no objective findings of internal or external hemorrhoids and no functional limitations. The Veteran was afforded another VA examination in November 2013. The report noted no continuous medication, and no signs or symptoms, for hemorrhoids. Examination of the rectal and anal area was normal, showing no external hemorrhoids, complications, conditions, signs or symptoms. The examiner found no functional impact. The Board acknowledges that during the examination the Veteran reported undergoing an endoscopy procedure in November 2013. Private medical records document the reported endoscopy procedure; however, it was related to his GERD, not hemorrhoids, disability. The report from this procedure does not mention the Veteran’s hemorrhoids. Notably, the examiner commented that endoscopy findings were consistent with GERD. Pursuant to an October 2017 Board remand, the increased rating claim was remanded for a new VA examination to determine the current nature and severity of hemorrhoids. In November 2017 the AOJ requested an appropriate VA examination, however, the Veteran failed to respond to the scheduling request and the examination was cancelled. Based on the foregoing, the Board finds a compensable evaluation for hemorrhoids is not warranted at any time during the appeal period. Aside from occasional medication for constipation, the objective evidence does not show any signs or symptoms related to hemorrhoids. On October 2010 examination, although the Veteran reported a worsening of symptoms described as intermittent bleeding with bowel movements, there was no objective evidence of internal or external hemorrhoids, palpitation, or testicular atrophy. Similarly, during the November 2013 examination, a physical examination of the rectal and anal area was normal, showing no external hemorrhoids, complications, conditions, signs or symptoms. The Veteran himself denied continuous use of medication. Because the evidence does not show hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; a compensable evaluation under Diagnostic Code 7336 is not warranted. To the extent the Veteran reported intermittent bleeding, the Board notes that the criteria for an increased rating requires persistent bleeding with secondary anemia, or with fissures. Notably, during both VA examinations there was no objective evidence of bleeding, thrombosis, anemia, or fissures. The Board finds that the Veteran’s report of intermittent bleeding is accurately reflected by the noncompensable rating for mild to moderate symptomology. Accordingly, for the foregoing reasons, the preponderance of the evidence is against assigning a compensable evaluation for service-connected hemorrhoids during the period on appeal. 2. Entitlement to a rating in excess of 10 percent for GERD The Veteran contended that the severity of his GERD condition was underrated. See December 2020 Appellate Brief. His service-connected GERD is evaluated as 10 percent disabling under 38 C.F.R. § 4.115a, Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which includes 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, Diagnostic Code 7346. The relevant evidence in this appeal includes July 2010 and November 2013 VA examination reports, and VA and private treatment records. The Board’s review of the VA treatment records does not reveal any information or evidence regarding the severity of the Veteran’s GERD disability. During a July 2010 examination, the Veteran denied any periods of incapacitation or recommended bedrest, and any impediments in activities of daily living or his occupation due to GERD. He complained of daily heartburn in epigastric and substernal areas with occasional nausea and vomiting, and daily regurgitation of acid. He reported being on a restricted diet and medication, but denied hematemesis, melena, and any dysphagia. The Veteran was afforded another VA examination in November 2013. The examiner noted that the Veteran’s GERD required medication and was manifested by reflux and regurgitation symptoms. The examiner found no other pertinent findings or functional impairment. In support of his claim, the Veteran submitted private medical records documenting GERD treatment from 2013 to 2015. October 2013 private medical records document a history of GERD treated with medication. Under review of symptoms, the Veteran reported frequent reflux symptoms, but no abdominal pain. At a November 2013 follow-up visit, a physician noted that GERD was manifested by symptoms of heartburn, acid regurgitation, and reflux; but no epigastric pain, nausea, vomiting, sore throat, dysphagia, odynophagia, hematemesis, or melena. The Veteran reported exacerbating symptoms at night attributed to eating large meals, lying down after meals, and recumbency. The physician noted associated symptoms of cough, wheezing, and recurrent pneumonia; but no weight loss, bloating, or belching. An upper endoscopy and biopsy procedure showed gastritis, gastric inlet patch seen in the proximal esophagus that was likely nonfunctioning, irregular z-line with possible Barrett’s segment, and possible silent reflux. The biopsy showed chronic gastritis and irregular z-line of the distal esophagus. The biopsy ruled out Barrett’s esophagus as his reflux showed no malignancy. The physician concluded that the Veteran had good treatment compliance but poor symptoms control. He was prescribed new medication and recommended dietary and lifestyle changes. In October 2014, the Veteran reported having reflux problems at nighttime with occasional vomiting, epigastric discomfort, and early satiety with meals. Review of symptoms was positive for heartburn or reflux, and constipation; but no infection, dysphagia, nausea, vomiting, early satiety, hematemesis, milk intolerance, abdominal swelling, pain with bowel movement, diarrhea, or change in bowel habits. On physical examination, there was mild tenderness in the epigastric area. In May 2015, in response to the Veteran’s complaints of vomiting, a gastric emptying scan was performed. The tests showed normal stomach emptying and measuring, and an impression of normal gastric emptying was provided. Pursuant to an October 2017 Board remand, the increased rating claim was remanded for a new VA examination to determine the current nature and severity of GERD. In November 2017 the AOJ requested an appropriate VA examination, however, the Veteran failed to respond to the scheduling request and the examination was cancelled. October 2017 private medical records document a history of easy aspiration due to underlying GERD treated with medication but not completely resolved. Review of systems notes that the Veteran’s weight was stable. An assessment of GERD without esophagitis was provided. Based on the foregoing, the Board finds a rating in excess of 10 percent is not warranted at any time during the appeal period. While the evidence shows the Veteran has endorsed experiencing symptoms such as regurgitation and vomiting, the evidence of record does not reflect that he experiences persistently recurrent epigastric distress. On July 2010 examination he complained of daily heartburn in epigastric and substernal areas with occasional nausea and vomiting, but on November 2013 examination no epigastric distress was noted. To this regard, during a November 2013 private follow-up visit, the physician noted that GERD was not manifested by epigastric pain, nausea, or vomiting. In October 2014, the Veteran reported epigastric discomfort and on physical examination there was mild tenderness in the epigastric area. Further, the Veteran has not reported, and the evidence of record does not show, any substernal, arm, or shoulder pain. The Board also finds probative that the preponderance of the evidence does not reflect that the Veteran’s GERD symptoms are productive of considerable impairment of health. In this context, the Board notes the while Veteran requested a new VA medical examination for his GERD condition in May 2017, he failed to respond to a scheduling request for the examination. As such, the examination request was cancelled in November 2017. Medical evidence dated in October 2017 does not suggest that his GERD disability did not worsened since the November 2013 VA examination. To this regard, October 2017 private medical records document a history of easy aspiration due to underlying GERD treated with medication but not completely resolved. A review of systems noted that the Veteran’s weight was stable and an assessment of GERD without esophagitis was provided. Based on the foregoing, the Board finds that the criteria needed to warrant a higher 30 percent rating under Diagnostic Code 7346 are not met. Accordingly, for the foregoing reasons, the preponderance of the evidence is against assigning a rating in excess of 10 percent for service-connected GERD during the period on appeal. 3. Entitlement to a rating in excess of 30 percent for dysthymic disorder, prior to September 16, 2011 The Appellant contends that a total 100 percent rating should be awarded for the Veteran’s dysthymic disorder since July 6, 2010, date of claim. See December 2020 Appellant Brief; July 2010 VA Form 21-526b, Veterans Supplemental Claim. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Prior to September 16, 2011 VA and private treatment records, July 2010 and April 2011 VA examinations, and the Veteran’s and Appellant’s lay statements show that the Veteran’s dysthymic disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships). The Board notes that in a September 2020 Statement in Support of Claim, the Appellant reported that the Veteran expressed suicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. Aside from the Appellant’s contention, the claims file does not document any reports of suicidal ideation. On the contrary, during both July 2010 and April 2011 VA examinations, the Veteran denied suicidal ideation. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. On April 2011 VA examination, the Veteran reported only seeking mental health treatment once, to refill a prescription, since the prior July 2010 VA examination. On July 2010 mental status examination, the Veteran was fully oriented, well groomed, friendly, and cooperative. His mood was described as euthymic with full reactive affect. He denied suicidal and homicidal ideations; and his attention, memory, and judgment were within normal limits. At the subsequent April 2011 examination, the examiner states that the Veteran had no significant changes in symptomatology or functional impairment since the prior examination. The Veteran himself did not report any significant change in symptoms or treatment. As such, the examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms. In the remarks section, the examiner stated that there was no indication that psychiatric symptoms alone have interfered with the Veteran’s ability to work or be employed. On September 16, 2011 the Veteran was hospitalized for 10 days at a private medical facility to treat psychiatric symptoms. See June 2012 Medical Treatment Record-Non-Government Facility. While the Veteran did experience symptoms contemplated by a 50 percent rating—disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships—the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Further, while the July 2010 VA examination report documents the Veteran’s report of financial difficulty attributed to lack of employment, prior and subsequent treatment records contain reports that the Veteran was generally performing well at work. See April 2012 VA Examination Report. The Veteran’s complaints of employment were largely due to the fact that his employer did not have any work for him, rather than his psychiatric symptoms causing occupational and social impairment. In fact, during the July 2010 VA examination, the Veteran reported having positive marital and familial relationships, and attributed his lack of friendships to living in a new place. Further, on April 2011 VA examination, the examiner opined that there was no indication that the Veteran’s psychiatric symptoms alone have interfered with his ability to work or be employed. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 50 percent rating. Prior to September 16, 2011, the criteria for a 50 percent or higher rating are not met and the appeal must be denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.