Citation Nr: 21024297 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-35 368 DATE April 22, 2021 ORDER Entitlement to an initial compensable disability rating for gastroenteritis is denied. Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for cold injury residuals of both feet is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s gastroenteritis is manifested by no more than intermittent abdominal pain, without evidence of severe hemorrhages, large ulcerated or eroded areas, multiple small eroded or ulcerated areas, small nodular lesions, or any underlying disorders. 2. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VII in the right ear and Level VIII in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for gastroenteritis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.31, 4.114, Diagnostic Code 7399-7307. 2. The criteria for a rating in excess of 40 percent for bilateral 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 The Veteran served on active duty in the United States Army from October 1952 to July 1954. He was awarded a Combat Medical Badge among his awards and decorations. Duty included service in Korea. The issues of entitlement to service connection for cold injury residuals of both feet and increased ratings for gastroenteritis and bilateral hearing loss were denied in a June 2020 Board decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to a joint motion for remand (JMR), the Court remanded the issues for readjudication in a December 2020 Order. The parties to the JMR determined that the Board failed to acknowledge and rule on the Veteran’s explicit request to hold the record open for 90 days after receiving the claims file, which he also requested. The Board fulfilled the claims file request on June 16, 2020, when it mailed the claims file to the Veteran’s representative but did not acknowledge or discuss the request to hold the record open for 90 days after the receipt of the claims file requested. On January 22, 2021, the Veteran submitted a waiver form requesting to hold the record open for the remainder of the 90-day period to submit additional evidence and/or argument. As the 90-day period has now expired, the Board finds that it has fulfilled its duty to assist and may now adjudicate the issues on the merits without prejudice to the Veteran. Increased Ratings Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). 1. Entitlement to an initial compensable disability rating for gastroenteritis The Veteran contends that he is entitled to a compensable rating for his service-connected gastroenteritis, which is rated under Diagnostic Code 7399-7307. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for a digestive system disability, rated by analogy to gastritis. Under Diagnostic Code 7307, a 10 percent rating is warranted for chronic gastritis with small nodular lesions and symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7307. A 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. Id. A 60 percent rating is warranted for chronic gastritis with severe hemorrhages or large ulcerated or eroded areas. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned where the requirement for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran was provided a VA examination for intestinal conditions in January 2019. The examiner indicated a diagnosis of acute viral gastroenteritis in 1954 that resolved without residuals. The Veteran reported that he required inpatient care for approximately seven days during service due to fever, fatigue, and dehydration and believes that he may have had dysentery. At the time of the examination, he denied any other symptoms, complaints, or other problems over the years related to the incident and denied any chronic residuals. The examiner noted that the Veteran’s service treatment records (STRs) show that the Veteran was treated in January 1954 for diarrhea, fever, and chills. The Veteran was discharged four days later with no further diarrhea and a normal temperature with a diagnosis of gastroenteritis. At the time of the examination, the Veteran did not report continuous medication for control of an intestinal condition or any history of surgical treatment for an intestinal condition. The examiner noted no signs or symptoms attributable to any non-surgical non-infectious intestinal condition, no episodes of bowel disturbance with abdominal distress or exacerbations, no weight loss, and no malnutrition, serious complications or other general health effects attributable to the intestinal condition. Further, the Veteran did not have any benign or malignant neoplasms or metastases related to the diagnosis of gastroenteritis. The examiner noted that the abdomen was soft and non-distended with normoactive bowel sounds with no tenderness, rebound or guarding. He indicated a normal abdominal exam and concluded that the Veteran had no current residuals related to his in-service gastroenteritis. The available post-service treatment records do not contain any complaints or treatment for any symptoms related to gastroenteritis. There are no other medical records or opinions indicating more severe symptomatology at any time during the appeal period. Further, the Veteran has not reported any symptoms since service nor disagreed with the fact that he has no residuals related to his in-service gastroenteritis. Based on this evidence, the Board finds that a compensable rating for the service-connected gastroenteritis is not warranted. The evidence does not demonstrate nodular lesions resulting symptomatic gastritis, or that the Veteran’s symptoms have caused any impairment of his health. On the most recent examination of record in January 2019 the examination findings were essentially normal. Therefore, the weight of the evidence is against a compensable rating for gastroenteritis for the entirety of the appeals period. See 38 C.F.R. § 4.31. The Board has also considered whether any alternate diagnostic codes would allow for a higher disability rating but finds that there are none that are applicable. For these reasons, the Board finds that the weight of the evidence is against finding that the criteria for a compensable rating for the service-connected gastroenteritis have been met or more nearly approximated at any time during the pendency of the appeal. 2. Entitlement to an initial rating in excess of 40 percent for bilateral hearing loss The Veteran asserts that his bilateral hearing loss disability warrants a rating in excess of 40 percent. In rating hearing loss, the rating schedule requires a mechanical application of the Rating Schedule, using numeric designations based upon the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.85; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). By applying the tables in the Rating Schedule to a veteran’s test results, a Roman numeral designation is assigned, ranging from Level I for essentially normal acuity to Level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI and Table VIA. These Roman numeral designations are then used to determine the percentage evaluation for hearing impairment by applying Table VII. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. The current rating criteria include alternate methods of rating exceptional patterns of hearing loss, as defined in 38 C.F.R. § 4.86. 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. 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. 38 C.F.R. § 4.86(a). 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. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. The Veteran underwent a VA hearing loss examination in January 2019. The Veteran reported he had difficulty hearing voices and communicating when not using hearing amplification. Audiological testing showed that the average pure tone decibel loss was 60 in the right ear and 64 in the left ear. Speech discrimination was 52 percent in the right ear and 48 percent in the left ear. The Board notes that both of the Veteran’s ears exhibit an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or more. However, in this appeal Table VI provides a higher numeral. The Veteran’s scores correspond to numeric designations of VII in the right ear under Table VI (IV under Table VIA) and VIII for the left ear under Table VI (V under Table VIA), resulting in a 40 percent disability rating under Table VII. The Board has considered the Veteran’s statements regarding the severity of his bilateral hearing loss disability and the effect it has on his daily life. However, the results of testing are the most probative evidence, as the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Lay statements are of limited probative value, and while the Veteran is competent to report difficulty with his hearing, he is not competent to assign speech recognition scores or pure tone decibel readings to his current acuity problems. Hearing loss ratings are based on mechanical application of VA rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3Vet. App.345, 349 (1992). There are no other audiometric evaluations of record during this period that establish a rating in excess of 40 percent is warranted for bilateral hearing loss. Based on the evidence above, a rating for the Veteran’s bilateral hearing loss in excess of 40 percent is not warranted. That rating contemplates the impairment referred to by the Veteran. REASONS FOR REMAND 1. Entitlement to service connection for cold injury residuals of both feet is remanded. The Veteran claims that he currently has cold injury residuals of both feet that are related to his military service. In January 2019, the Veteran was afforded a VA examination for cold injury residuals where he reported having incurred frostbite to his left ankle posteriorly while stationed in Korea in the 1950s. He denied noticing any symptoms of change in skin color or any other symptoms at time he believes he had frostbite. He reported that symptoms “come and go” over the years and denied discussing this condition with any medical provider. The Veteran’s wife stated he did recently inform his private podiatrist of this history and stated no clinical findings were noted and no treatment was recommended. On examination, there were negative clinical exam findings consistent with any cold injury residuals noted to the bilateral feet or ankles. The bilateral feet and ankle x-rays document findings of bilateral osteopenia and vascular calcifications, tiny bilateral plantar calcaneal spurs, and degenerative changes in the bilateral feet and ankles which were separate and distinct medical conditions from cold injury residuals. The VA examiner determined that the medical, clinical, or diagnostic evidence was not consistent with any cold injury or cold injury residuals to the bilateral feet or ankles or to any body part at this time. Records provided for review documented that he had numbness to bilateral feet due to unrelated diabetic peripheral neuropathy and was followed by a private podiatrist. The same examiner provided an addendum opinion in September 2019 whereby she explained that “[p]er literature review, frostbite is a severe, localized cold-induced injury due to freezing of tissue... Frostnip refers to cold-induced, localized paresthesias that resolve with rewarming. There is no permanent tissue damage.” The Veteran denied noticing any symptoms of change in skin color or any other symptoms at the time he believed he had frostbite. Furthermore, the current evidence indicated that the Veteran had unrelated left ankle degenerative arthritis and unrelated diabetic peripheral neuropathy which was more likely the etiology of his currently reported left posterior ankle pain. As such, based on this and literature review, the examiner stated that the Veteran’s condition was more than likely due to frostnip rather than frostbite. Therefore, she concluded that it was at least as likely as not that the Veteran had frostnip cold injury that resolved without residuals. She further stated that no answer was noted in the signs and symptoms section of the January 2019 VA examination as, in fact, there are no signs, symptoms, or residuals noted for this claimed condition. In a March 2021 correspondence, the Veteran’s representative challenged the competency of the January 2019 VA examiner (who also provided the September 2019 addendum opinion). The representative requested the curriculum vitae (CV) and any other qualifications regarding her medical expertise as well as the opportunity to review the information and question the examiner on this basis. The Veteran asserted that the VA examination and opinions were inadequate due to the examiner’s incompetency and averred that she did not provide sufficient rationale to support her conclusions. Specifically, the Veteran noted that the examiner stated that the Veteran did have a “frostnip cold injury” due to service, but that it resolved without residuals. The Veteran further asserted that osteoarthritis is a known residual of cold injuries, and that he is diagnosed with osteoarthritis of both feet. VA is presumed to have properly chosen examiners who are qualified to provide competent medical evidence. However, if the Veteran wants to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir., 2019). Therefore, the claim must be remanded for efforts to be made to obtain and provide the requested information to the Veteran. Further, to avoid later potential development requirements, the Board will request an expert examination to clarify whether the Veteran has a current disability with respect to any cold injury residuals of both feet. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to TDIU has been raised by the record and the Veteran’s representative. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A completed VA Form 21-8940 (application for increased compensation based on unemployability) is not of record. This form requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. As such, a remand is required to provide the Veteran with this Form, or for him to submit equivalent information, as well as any other development deemed necessary. This issue is intertwined with the other issue being remanded, and initial review by the Agency of Original Jurisdiction is indicated. The matters are REMANDED for the following action: 1. Request that the January 2019 examiner provide a copy of her curriculum vitae, resume, or medical credentials. Upon receipt of such professional documentation, associate it with the record and provide the Veteran and his representative with a copy for review. If any requested CV or resume is not obtainable, the Veteran should be so advised and the reasons for such should be noted in the record. 2. Obtain an addendum opinion, and/or new examination from a clinician of appropriate expertise regarding the nature and etiology of any cold injury residuals of both feet. (If it is determined that additional examinations are needed to address this matter, such examinations should be scheduled in accordance with applicable procedures.) The examiner must be given access to all records contained in the electronic file, and a notation must be made that review of all records has been accomplished. After a thorough review of the medical history, the examiner is requested to prepare a detailed opinion which answers the following questions: a) Does the Veteran currently have a diagnosis related to cold injury residuals of both feet? If so, what is the most appropriate diagnosis? All pertinent symptomatology and findings should be reported in detail, including all diagnoses. Any indicated diagnostic tests and studies should also be accomplished. b) If the answer to a) is yes, taking into consideration the Veteran's service treatment records (STR's), lay statements, post-service VA or private treatment records and examinations, is it as likely as not (that is, a probability of 50 percent or greater) that the disability had its origin in service or is otherwise related to the Veteran's active service? The examiner should provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also address and reconcile any previous examination reports, to include the January 2019 VA examination opinion and the September 2019 addendum opinion, as well as any other pertinent evidence of record, as necessary. The examiner should also provide a copy of his/her curriculum vitae as part of, or accompanying, the VA examination report. 3. Provide the Veteran with a VA Form 21-8940 (application for increased compensation based on unemployability). He should be provided with a reasonable period of time to submit this Form or equivalent information. Undertake any additional development indicated as necessary to adjudicate the total rating issue. 4. Thereafter, review the record to ascertain that development has been completed. If not, take corrective action and then readjudicate the remanded issues, to include initial consideration of the TDIU claim. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.