Citation Nr: 21026330 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-41 413 DATE: April 30, 2021 ORDER Entitlement to a compensable rating for amebiasis is denied. REMANDED Entitlement to service connection for gastrointestinal disability, to include gastroesophageal reflux disease (GERD) and as secondary to service-connected amebiasis, is remanded. Entitlement to a finding of total individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence does not reveal any manifestations associated with the Veteran’s service-connected amebiasis. CONCLUSION OF LAW The criteria for a compensable rating for amebiasis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7321. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1966 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds it appropriate to broaden the Veteran’s claim of service connection for a stomach disorder and recharacterized the issue to better represent the nature of the Veteran’s claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in December 2016 and the claim was readjudicated by a Statement of the Case. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. In accordance with the Board’s August 2018 remand, the Veteran was asked to provide releases for any relevant private treatment records and did not respond. Stegall v. West, 11 Vet. App. 268 (1998). No further development is required. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation as they include findings to permit application of the rating schedule. While the January 2021 examination was not completed in person, the examiner explained that an in-person examination was not required, reviewed the medical evidence of record, cited relevant testing, and interviewed the Veteran by telephone. The Veteran denied any symptoms associated with his service-connected disability. The Board therefore that the January 2021 VA examination report substantially complies with the Board’s remand and VA has satisfied its duty to assist. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a compensable rating for amebiasis Disability ratings are determined by the application of the facts presented to 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. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Veteran was treated for amebiasis in service. In July 1971, VA granted service connection for this condition, assigning an initial noncompensable rating. Amebiasis is “an infestation with amebae” which can affect humans and is “primarily seen in patients with active intestinal or hepatic disease, including from direct extension of intestinal amebiasis after surgery or extension of a hepatic abcess spontaneously or after surgery . . . .” Dorland’s Illustrated Medical Dictionary, 58 (32nd Ed. 2012). The Veteran’s amebiasis is rated as noncompensably disabling under Diagnostic Code 7321. The schedule of ratings for the digestive system directs ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating is to 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 evaluation. 38 C.F.R. § 4.114. Under Diagnostic Code 7321, a 0 percent rating is warranted for amebiasis that is asymptomatic. A 10 percent rating is warranted for mild gastrointestinal disturbances, lower abdominal cramps, nausea, gaseous distention, chronic constipation interrupted by diarrhea. VA treatment records do not reflect any treatment or complaints as to amebiasis. In July 2015, the Veteran was provided a VA examination. The examiner noted that the Veteran was treated for amebiasis during service. The Veteran indicated that he had stomach problems lately, but denied having had any bloody stools, diarrhea, or a relapse of infection by amebiasis. There was no medication required and no signs or symptoms attributable to any infectious intestinal condition. Lab testing of feces in April 2013 was negative. The examiner explained that any current stomach complaints were not due to or related to his service-connected condition of amebiasis. The Veteran was also provided a VA examination in January 2021. The examination report for intestinal conditions shows that the Veteran had been treated for the amebiasis infection during service that it had resolved during service. The medical records did not show any evidence of recurrences, residuals, or sequelae. There was no evidence of relapse or reactivation. There was no evidence of any active amebiasis disease or infection at present. The Veteran was also contacted and interviewed by phone call. He denied any history or signs of reactivation of parasitic infection and denies signs or symptoms of active infection. He denied fever, chills, and diarrhea; he denied hospital admissions, emergency room visits, and treatments for any active parasitic infection. The examiner also cited a January 2020 CT scan that showed stomach and small bowel loops appeared within normal limits and no intra-abdominal inflammatory changes, free fluid, or lymphadenopathy. CBC results from October 2020 were also normal and revealed no evidence of anemia or active infection. For the following reasons, a compensable rating is not warranted. There are no signs or symptoms of amebiosis since it was treated and resolved during active service. The Board finds the VA examination reports are highly probative regarding any symptoms as to amebiosis and, as noted in January 2021, the Veteran denied any signs, symptoms, or treated for an infection. Because the Veteran’s amebiasis is specifically addressed by Diagnostic Code 7321, consideration of other diagnostic codes would not be appropriate. A preponderance of the evidence is against the claim and the claim is denied. REASONS FOR REMAND 2. Entitlement to service connection for gastrointestinal disability, to include GERD and as secondary to service-connected amebiasis, is remanded. In December 2020, the Board remanded the appeal to obtain a VA opinion as to whether any stomach disability was caused or aggravated by the Veteran’s service-connected amebiasis. The January 2021 VA examination report for the stomach indicated that there were no signs or symptoms of a disability. However, recent VA treatment records reflect a diagnosis of GERD. Given this evidence, the Board finds that an addendum opinion is required. 3. Entitlement to a TDIU remanded. The Veteran’s TDIU claim is inextricably intertwined with the service connection claim remanded herein, adjudication must be deferred pending completion of the requested development. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In addition, the RO has denied the Veteran’s TDIU claim as moot because the Veteran already received a 100 percent rating for the entire appeal period. However, the distinction between a TDIU and a 100 combined disability rating matters when entitlement to special monthly compensation (SMC) is possible, under 38 U.S.C. § 1114(s). Thus, a TDIU rating can qualify for compensation at the housebound rate, so long as a TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). On remand, the RO should consider whether TDIU may be warranted based on a single disability. The matters are REMANDED for the following action: 1. Request an addendum opinion from the January 2021 VA examiner, or, if unavailable, another examiner. The examiner must address whether it is at least as likely as not (50 percent probability or higher) that the claimed gastrointestinal disability, to include GERD, was caused or otherwise related to active service. In addition, the examiner must also address whether it is at least as likely as not (50 percent probability or higher) that the claimed gastrointestinal disability, to include GERD, was caused or aggravated by his service-connected amebiasis. A full and complete rationale must be provided for any opinion reached. 2. Thereafter, readjudicate the remanded issues, to include whether the Veteran is entitled to TDIU predicated on a single service-connected disability for the purposes of establishing SMC under 38 U.S.C. § 1114(s). If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for review if otherwise in order. Ashley Castillo Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.