Citation Nr: 21040832 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-34 682 DATE: July 7, 2021 ORDER For the entire period on appeal, entitlement to a disability rating of 60 percent for hiatal hernia with gastroesophageal reflux disease (hereinafter "GERD") is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's GERD has been manifested by symptoms of pain, nausea, vomiting, some degree of weight loss, melena, and other symptom combinations productive of severe impairment of health for the entire period on appeal. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for GERD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from July 1985 to October 1985 and from March 1990 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his June 2017 VA Form 9, the Veteran specified he was only appealing the GERD issue from the May 2017 Statement of the Case (SOC). As such, entitlement to an increased rating for GERD is the only issue on appeal before the Board. In October 2020, the Veteran and his spouse testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In March 2021, the Board awarded an increased rating of 30 percent for GERD for the entire period on appeal and remanded the issue of entitlement to a disability rating in excess of 30 percent for additional development. The issue of unemployability has been raised by the record and therefore the issue of entitlement to a TDIU is added to the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board observes that the Veteran submitted additional lay and medical evidence after the RO's adjudication in the April 2021 Supplemental Statement of the Case (SSOC), without a waiver of initial RO consideration. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a disability rating in excess of 30 percent for GERD Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. VA regulations provide that there are diseases of the digestive system, particularly with the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.113. Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Under DC 7346, a 30 percent rating is warranted for hiatal hernia that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest schedular rating of 60 percent is warranted for 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. The terms "mild," "moderate" and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this matter, the Veteran is currently in receipt of a 30 percent rating for his GERD for the entire period on appeal. The appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 60 percent disability rating for GERD under DC 7346 are more nearly approximated. Specifically, the evidence is at least in equipoise as to whether the Veteran's GERD has been manifested by symptoms of pain, nausea, vomiting, some degree of weight loss, melena, and other symptom combinations productive of severe impairment of health. On numerous occasions during the period on appeal, the Veteran presented to the emergency department and to his treatment providers for chest pain, which was found to be non-cardiac and likely related to his GERD. See private treatment records dated January 2013 to October 2016; VA treatment records dated May 2017 to November 2020. In an October 2020 lay statement, the Veteran's spouse wrote, "I am the wife of [the Veteran], and we have been married for 12 years and together for 14. I married a proud Disabled Veteran that served his country and has been too proud to ask for all the help he needs. I have seen him slowly mentally, physically and emotionally come apart over these 14 years. He will never really tell you of the pain he suffers from, on a daily bas[i]s; but I see the pain the acid reflux causes him. He is so limited on what he can eat and what he eats causes him pain. Even when he doesn't eat he has this constant heaviness, burning and tightening feeling in his chest that feels like he can't breathe along with headaches that increase his anxiety and withdrawal from the family. We have been to the doctor and the emergency room so many times for massive headaches, chest[,] and arm pains, I have lost count. It scares me to see him giving up. Just recently he went in the other room and said he was just so tired of the pain and the fight, he didn't know if he wanted to wake back up. He said he may lay here and just die instead of going to the emergency again...He misses the time with his family because of his anger and pain, he is missing spending normal time with his family. The pain, anger and loss of activity has caused a rift in our marriage as well. Being in so much pain causes him to miss lots of work and that causes a whole other level of stress. This causes emotional and mental stress on our marriage and family. Being in such pain causes so many rippled effects on our family and home life. The normal things in life have become extremely taxing." During the October 2020 Board hearing, the Veteran testified that his GERD symptoms have put stress on him and his family because they have to worry whether the chest pains are from a heart attack or just acid reflux, and that it has taken a mental toll on him. In the "Remarks" section of the April 2021 VA examination report, the Veteran's spouse stated that the Veteran "has much irritability because of the reflux every night at bedtime and poor sleep as a result." The Board finds the lay descriptions of the Veteran's symptoms and impairment of his health to be competent, credible, and highly probative as to the severity of his disability. The Board also finds it highly significant that examining medical doctors have determined that the Veteran's GERD impacts his ability to work. In the October 2020 private "Esophageal Conditions" Disability Benefits Questionnaire (DBQ), Dr. T.S., Jr. opined that the Veteran's GERD impacts his ability to work, explaining, "The acute and chronic symptoms interfere with all forms of physical and sedentary occupational tasks due to distraction and lack of concentration from frequent symptoms." In the April 2021 VA "Esophageal Conditions" examination report, the VA examiner opined that the Veteran's GERD impacts his ability to work, writing, "The Veteran has difficulty eating and sleeping which makes it difficult to function. The pain leads to anxiety which makes it also difficult to do his job because he is so fatigued." Furthermore, VA and private treatment records reveal complaints of nausea, vomiting, and melena throughout the entire period on appeal, which are symptoms that more nearly approximate the criteria for a 60 percent rating under DC 7346. See private treatment records dated October 2014 to October 2017; VA treatment records dated April 2019 to November 2020. Notably, in the October 2020 private "Esophageal Conditions" DBQ, Dr. T.S., Jr. indicated that the Veteran had 4 or more episodes per year of sleep disturbance caused by esophageal reflux lasting 10 days or more per episode, 4 or more episodes per year of recurrent nausea lasting 1 to 9 days per episode, 2 or more episodes per year of periodic vomiting lasting less than 1 day per episode, and 4 or more episodes per year of recurrent melena lasting less than 1 day per episode. Additionally, in the April 2021 VA "Esophageal Conditions" examination report, the Veteran reported that his current symptoms included vomiting, and the VA examiner noted that the Veteran had sleep disturbance caused by esophageal reflux once per year, lasting less than 1 day. There is also evidence of some degree of weight loss. In the "Remarks" section of the March 2020 VA "Diabetes Mellitus" examination report, the VA examiner wrote, "Veteran relates weight loss however reports most likely due to GERD." During the October 2020 Board hearing, the Veteran testified that he has had significant weight loss, reporting, "I started off at like 250, I'm down to 228." The Board acknowledges that in the April 2021 VA addendum medical opinion, the VA examiner wrote, in pertinent part, as follows: "I object that the current symptoms and ER visits and acute visits are from GERD. The Veteran had a completely normal EGD in Feb 2019. The Veteran alleges weight loss, melena, pain and vomiting. Based on the frequency of attacks, the Veteran would have had changes on the EGD that would reflect his pathology. Melena is the result of a gastrointestinal bleed in the upper G.I. tract. Again, as the EGD was normal, and showed no gastritis or ulcers, it is less likely that melena is present. Also the hemoglobin has been normal, it is unlikely that the Veteran has had melena and as noted above, he has not had any weight loss. Lastly, the Veteran was diagnosed with diabetes in 2005. He has been diagnosed with diabetic retinopathy in March 2019, and 3/2020 with diabetic neuropathy. Considering that the EGD was normal, but he has poorly controlled diabetes with end organ damage, one should consider that all the ER visits may be the result of Gastropathy or gastroparesis. Both are usually the result of poorly controlled diabetes. The EGD would be normal in this situation. The fact that the Veteran is also on numerous medications for reflux which aren't working, also speaks to this diagnosis. The drugs of choice would be reglan or erythromycin. The workup would include a gastric emptying scan, which he has not had. Therefore, I cannot diagnose these conditions, but I suspect he has stable GERD and current pathology and complaints are from Diabetic complications." (emphasis added). Upon review of the April 2021 VA addendum medical opinion, the Board finds it inadequate and affords it little to no probative value. The April 2021 VA examiner states that the "ER visits may be the result of Gastropathy or gastroparesis," concedes that she cannot diagnose these conditions, but still suspects that the Veteran has stable GERD and his current pathology and complaints are due to diabetic complications. Medical opinions expressed in such speculative language ("may be the result of," "I suspect") are inadequate. Moreover, pursuant to Mittleider v. West, where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. 11 Vet. App. 181, 182 (1998) (per curiam). Here, given the inadequate opinion provided by the April 2021 VA examiner, the record remains unclear which symptoms are attributable to the Veteran's GERD or to his suspected gastropathy or gastroparesis. As such, the Board is precluded from differentiating the symptoms, and it will accordingly attribute all of the aforementioned symptoms to his service-connected GERD. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his disability picture for GERD more nearly approximates the criteria for a 60 percent rating under DC 7346 for the entire period on appeal. A 60 percent schedular rating is the maximum under DC 7346. As an aside, the Board notes that in an April 2021 "VA Memo," the issue of service connection for anxiety as secondary to the Veteran's GERD was referred to the Agency of Original Jurisdiction (AOJ) for adjudication, and in May 2021, the Veteran filed a service connection claim for sleep apnea as secondary to his GERD. 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, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. Based on the 60 percent rating for GERD awarded herein, the Veteran meets the schedular threshold for a TDIU. 38 C.F.R. § 4.16(a). As noted previously, in the October 2020 private "Esophageal Conditions" DBQ, Dr. T.S., Jr. opined that the Veteran's GERD impacts his ability to work, explaining, "The acute and chronic symptoms interfere with all forms of physical and sedentary occupational tasks due to distraction and lack of concentration from frequent symptoms." In the April 2021 VA "Esophageal Conditions" examination report, the VA examiner opined that the Veteran's GERD impacts his ability to work, writing, "The Veteran has difficulty eating and sleeping which makes it difficult to function. The pain leads to anxiety which makes it also difficult to do his job because he is so fatigued." Additionally, in an October 2020 lay statement, the Veteran's spouse wrote, "Being in so much pain causes [the Veteran] to miss lots of work and that causes a whole other level of stress," and during the October 2020 Board hearing, the Veteran testified that he has missed several days at work because of his GERD. This evidence raises the issue of unemployability due to the Veteran's service-connected GERD. However, the Board lacks sufficient information as to the Veteran's employment, earnings, and educational history to adjudicate entitlement to a TDIU. Therefore, on remand, the Veteran should be given proper notice regarding the evidence and information necessary to substantiate a TDIU claim and provided a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), for completion. Accordingly, the matter is REMANDED for the following action: 1. Provide proper notice to the Veteran regarding the evidence and information necessary to substantiate a TDIU claim and request that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). (Continued on the next page) 2. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.