Citation Nr: 21012555 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-41 229 DATE: March 4, 2021 ORDER The claim of entitlement to an initial disability rating in excess of 10 percent for adjustment disorder with depressed mood is dismissed. The claim of entitlement to an initial disability rating in excess of 10 percent for right knee degenerative arthritis is dismissed. The claim of entitlement to service connection for left knee degenerative arthritis is dismissed. The claim of entitlement to service connection for degenerative arthritis of right toes 2 through 5 is dismissed. Entitlement to an initial 60 percent disability rating for gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial 30 percent disability rating for irritable bowel syndrome (IBS) is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for gunshot wound of the right brachial artery is remanded. Entitlement to service connection for an eye disability other than cataracts and dry eye syndrome, including glaucoma, is remanded. FINDINGS OF FACT 1. During his November 2020 hearing, the Veteran withdrew his claims of entitlement to higher ratings for his psychiatric and right knee disabilities and to service connection for left knee and right toe disabilities. 2. The Veteran’s GERD manifests with a combination of symptoms productive of severe impairment of health. 3. The Veteran’s IBS manifests with alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeals related to claims for higher ratings for adjustment disorder with depressed mood and right knee degenerative arthritis and claims for service connection for disability of the left knee and right toes have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an initial 60 percent disability rating for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. 3. The criteria for an initial 30 percent disability rating for IBS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Navy from July 1981 to July 1985, and from March 1988 to September 2014. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020. At the hearing, the Veteran suggested that the disability rating assigned for his currently service-connected eye disability, cataracts and dry eye syndrome, might be before the Board of Veterans’ Appeals (Board). As the Board had not identified that as an issue on appeal prior to the hearing, as opposed to the issue of service connection for an eye disorder other than cataracts and dry eye syndrome, the Board agreed to take testimony on the rating issue subject to its jurisdiction so that another hearing would not have to be scheduled should the rating issue also be on appeal. After further review, the Board has confirmed that the rating issue is not on appeal before the Board. In June 2020, the Department of Veterans Affairs (VA) issued a Statement of the Case that, among other things, denied service connection for an eye disability other than cataracts and dry eye syndrome. The Veteran timely appealed to the Board several issues addressed in this Statement of the Case, to include the issue related to a claim for service connection for an eye disability. The same day VA issued the Statement of the Case, VA also issued a rating decision awarding service connection for cataracts and dry eye syndrome. The Veteran did not file a notice of disagreement on the form prescribed by the Secretary of VA disputing the initial rating assigned for that disability. See 38 C.F.R. § 19.21. As such, the Board does not have jurisdiction over the rating issue. 38 C.F.R. § 19.20. The service connection issue is discussed below. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. In this case, at the hearing with the undersigned the Veteran withdrew his appeal related to claims for higher ratings for adjustment disorder with depressed mood and right knee degenerative arthritis and claims for service connection for disability of the left knee and right toes. The withdrawal request was discussed prior to the hearing and was acknowledged on the record. The withdrawal request was explicit, unambiguous, and done with a full understanding of the consequences. As there remain no allegations of errors of fact or law for appellate consideration regarding these issues, the Board does not have jurisdiction over them and they are dismissed. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability is not and cannot be adequately rated under the Rating Schedule. 1. GERD. The Veteran is currently in receipt of a 10 percent disability rating under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Diagnostic Code 7399 refers to disabilities of the digestive system, while Diagnostic Code 7346 refers to hiatal hernia. GERD is not specifically listed in the rating schedule, so it is rated by analogy under Diagnostic Code 7346, which most closely contemplates the Veteran’s symptoms. Under Diagnostic Code 7346, a 10 percent rating requires two or more of the symptoms listed for the 30 percent evaluation of less severity. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Private medical records associated with the claims file include a June 2014 heartburn questionnaire completed by the Veteran. The Veteran indicated feeling tired or worn out, generally unwell, and anxious or upset “quite a lot of the time” because of heartburn or acid regurgitation. He also indicated that his heartburn or acid regurgitation rendered him unable to carry out daily activities, including both work outside the home and housework, “quite a lot of the time.” The Veteran was afforded a VA examination in connection with his claim in January 2015. The Veteran reported taking Carafate medication three times daily to treat his GERD. The examiner noted symptoms of pyrosis, reflux, regurgitation, and shoulder pain. The examiner also found that the Veteran had sleep disturbance caused by esophageal reflux four or more times per year; nausea four or more times per year; and vomiting four or more times per year. The examiner noted that the Veteran had undergone an upper endoscopy in August 2014, which revealed mild esophagitis in the distal esophagus, and normal stomach and duodenum. The examiner also noted that the Veteran had been diagnosed with Barrett’s esophagus in August 2014. The Veteran reported taking Pepto-Bismol, Alka-Seltzer, and Tums about twice per week. In a January 2016 statement in support of his claim, the Veteran wrote that he had been diagnosed with Barrett’s esophagus, chronic anemia, hemorrhoids, dyspepsia, history of colonic polyps, mild esophagitis, dysphagia, black tarry stool, melena, and IBS. He wrote that his symptoms included nausea and vomiting three to four times per week, blood in stool noted more than six times over the past two years, positive fecal occult tests in April and August 2015, trouble swallowing food, heartburn and regurgitation day and night, sleep disturbance, chronic dry cough and sore throat, and constant feelings of weakness and fatigue. The Veteran wrote that GERD and its associated symptoms have impacted nearly every aspect of his life and caused physical and social impairment in daily activities. He described his condition as “emotionally, socially and physically exhausting.” The Veteran’s wife also submitted a written statement in support of the Veteran’s claim in January 2016. She wrote that the Veteran has persistent, recurrent, almost constant pain in the upper abdomen and middle part of his chest up to the throat, jaw, and arm. She further wrote that she believed the Veteran to be in severe pain because of his “facial expression, groans and moans” related to his GERD. She corroborated the Veteran’s statement regarding symptomology and added that she observed GERD-related sleep disturbances. She wrote that the Veteran’s GERD “severely decrease[s] his abilities to conduct daily activities and he conducts his daily activities around his GERD condition.” In June 2019, the Veteran submitted a VA Esophageal Conditions disability benefits questionnaire (DBQ) completed by private physician J.G. in April 2019. Dr. J.G. noted diagnoses of GERD, Barrett’s esophagus, and dysphagia and indicated the Veteran had symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance caused by esophageal reflux, anemia, and nausea four or more times per year with an average duration of one to nine days; and recurrent vomiting and melena four or more times per year with an average duration of one day. Dr. J.G. wrote that the Veteran’s GERD was productive of “severe impairment of health” and involved complications of chronic, prolonged, moderate to severe GERD resulting in esophagitis and Barrett’s esophagus. Dr. J.G. also noted diagnostic testing showing chronic disease of anemia and multiple fecal occult blood immunoassay laboratory testing with positive results. Dr. J.G. wrote that the severe degree and frequency of the Veteran’s GERD results in significantly reduced ability to perform work-related activities. Dr. J.G. noted that there were no significant changes in the severity of the Veteran’s GERD since 2014. During his November 2020 Board hearing, the Veteran reiterated his statements concerning the severity, frequency, and duration of his GERD symptoms, adding that he experiences problems with GERD more frequently than half of the time. Overall, after careful review of the evidence of record, the Board finds that the Veteran’s GERD symptoms more nearly approximate a 60 percent disability rating under Diagnostic Code 7346 for the entire period on appeal. In reviewing the above evidence, the Board notes that the Veteran’s testimony is credible and that he is competent to report those symptoms which are readily observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). For the duration of the period on appeal, the Veteran has reported that his GERD manifests with symptoms of pain, persistently recurrent epigastric distress, pyrosis, regurgitation, and substernal or arm or shoulder pain. The Veteran also reported melena, confirmed by the medical evidence of record, and he and his wife described significantly impaired quality of life due to his GERD symptoms. The Board also finds Dr. J.G.’s April 2019 report to be particularly probative, as it corroborates the Veteran’s statements concerning his GERD symptoms, including the severity, frequency, and duration thereof. The Board notes that, under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 60 percent rating is assigned when GERD manifests in symptom combinations productive of severe impairment of health; however, severe impairment of health is not specifically defined. Having reviewed the evidentiary record, the Board finds that the Veteran’s GERD-related symptomatology is frequent and pervasive and, as such, has substantially impacted and impaired his health. Accordingly, a 60 percent rating for GERD is granted for the entire period on appeal. 2. IBS. The Veteran is currently in receipt of a noncompensable (0 percent) disability rating for IBS under Diagnostic Code 7319. That diagnostic code provides that a noncompensable rating is warranted for mild symptoms, including disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms, including frequent episodes of bowel disturbance with abdominal distress. The highest schedular rating for irritable colon syndrome is 30 percent, which is warranted for severe symptoms, including diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114 Diagnostic Code 7319. The Veteran asserts that his service-connected IBS is more disabling than currently rated. He was afforded a VA examination in connection with his claim in January 2015. The examiner noted that the Veteran’s IBS required constant medication for control. The examiner found that the Veteran had symptoms of alternating diarrhea and constipation, with constipation for three days followed by diarrhea for two to three days (five times daily when having diarrhea); abdominal distention three to four days weekly; nausea three to four days weekly; and vomiting two to three times weekly. Regarding functional impairment, the examiner noted that the Veteran’s reports of impaired concentration and missing meetings due to his IBS symptoms, which caused problematic gas and four to five trips to the bathroom. The Veteran submitted private medical treatment records in support of his claim for an increased rating, including an August 2015 DBQ completed by private physician J.G. Dr. J.G. noted diagnoses of IBS, melena, black tarry stool, chronic anemia, and a history of colonic polyps, among other conditions. He noted that the Veteran experienced severe alternating diarrhea and constipation with almost constant low abdominal pain, sometimes suffering eight to ten bowel movements per day, with rectal burning and swelling. Thereafter, the Veteran would have two to three days with no bowel movements, followed by constipation. The IBS cycle would start again. Dr. J.G. noted that the Veteran had almost constant gas, bloated abdomen, growling noises, and abdominal cramps. Dr. J.G. further reiterated that the Veteran had episodes of exacerbations and/or attacks consisting of frequent episodes of bowel disturbance and stool changes, alternating diarrhea and constipation with more or less constant lower abdominal distress with severe, sharp cramps and pain to the point of causing “severe occupational impairment.” In a January 2016 statement in support of his claim, the Veteran wrote that he experienced moderate to severe alternating constipation and diarrhea. The Veteran’s wife also submitted a written statement in which she noted the Veteran’s alternating constipation and diarrhea. She also wrote that she noticed the Veteran rushing to the bathroom multiple times during the day. The Veteran later submitted another private IBS DBQ, completed by Dr. J.G. in April 2019. The DBQ indicates the Veteran’s IBS symptoms were generally of the same severity as noted in Dr. J.G.’s April 2015 DBQ. Dr. J.G. described the Veteran’s IBS as consisting of more or less constant lower abdominal distress with severe, sharp cramps and pain, fecal incontinence, and near-constant fatigue and weakness. Dr. J.G. noted that the Veteran’s IBS symptoms severely impact or prevent many of his activities of daily living and his ability to seek and perform basic work activities due to weakness, fatigue, and difficulty concentrating. During his November 2020 Board hearing, the Veteran testified that he experienced violent diarrhea four to eight times per day, as well as constipation so severe that he had to be hospitalized for it at one point. He also described symptoms of severe pain in the bottom of his stomach; bloating; gas; and foul-smelling stool and stool changing in frequency and how solid and how formed. He also reported experiencing stomach cramps. Overall, after careful review of the evidence of record, the Board finds that the Veteran’s service-connected irritable bowel syndrome is manifested by alternating diarrhea and constipation with more or less constant abdominal distress. The Veteran’s statements and private medical evidence indicate his symptoms more closely approximate the criteria for a maximum 30 percent disability rating than a noncompensable rating. The Veteran’s diarrhea is frequent and severe. Additionally, the Veteran experiences considerable constipation and abdominal distress. Since the Veteran’s IBS is manifested by severe symptoms of diarrhea, constipation, and abdominal distress, the Board concludes a higher rating of 30 percent is warranted under Diagnostic Code 7319. REASONS FOR REMAND For the reasons discussed below, the remaining issues on appeal must be remanded for additional development. 1. Service connection for an eye disorder other than cataracts and dry eye syndrome, including glaucoma. The evidence shows the Veteran has been diagnosed with glaucoma during the period on appeal. See April 2019 Eye Conditions DBQ. During his November 2020 Board hearing, the Veteran testified that he believes his glaucoma is related to an in-service incident in which he was struck by a door on a submarine. The Veteran was afforded a VA eye examination in January 2015; however, the examiner did not find glaucoma at the time. The June 2019 private DBQ showed a diagnosis of glaucoma but did not include an opinion as to etiology. Therefore, remand is warranted to obtain a medical opinion concerning the etiology of the Veteran’s glaucoma. 2. Increased rating for residuals of a gunshot wound of the right brachial artery. The Veteran is currently in receipt of a single 10 percent disability rating under 38 C.F.R. § 4.73, Diagnostic Code 5305, which concerns muscle injuries to Muscle Group V (the flexor muscles of the elbow, including the biceps, brachialis, and brachioradialis). During his November 2020 Board hearing, the Veteran testified that his disability involves more than just the muscles that comprise Muscle Group V. Indeed, the Veteran submitted an October 2015 private Muscle Injuries DBQ indicating muscle injuries of Muscle Groups VI, VII, and VIII, in addition to Muscle Group V. Further, during his Board hearing, the Veteran testified that he has suffered nerve damage and neurologic complications associated with his gunshot wound. Additional examination is necessary to identify the severity of all muscular and neurological manifestations resulting from the Veteran’s gunshot wound. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his eye and gunshot wound residuals claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that his glaucoma is related to an in-service injury, event, or disease, to include being struck near the eye by a door (service connection has already been granted for a right eyebrow laceration). The examiner should also address whether any current glaucoma is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected cataracts and dry eye syndrome. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for muscle and nerve examinations to determine the current symptoms, level of severity, and functional impairment associated with his gunshot wound of the right brachial artery. The claims file should be reviewed by the examiners. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.