Citation Nr: 22017523 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-11 493A DATE: March 25, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for status-post laparoscopic cholecystectomy with esophagitis and with gastritis is denied. REMANDED Entitlement to service connection for a bowel disability is remanded. Entitlement to service connection for a male reproductive disability is remanded. FINDING OF FACT Status-post laparoscopic cholecystectomy with esophagitis and with gastritis has manifested without severe impairment of health nor with severe symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for status-post laparoscopic cholecystectomy with esophagitis and with gastritis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.114, Diagnostic Codes 7346-7318. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from February to June 2006 and active duty from May 2007 to October 2009. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Status-post laparoscopic cholecystectomy with esophagitis and with gastritis The Veteran is service-connected for status-post laparoscopic cholecystectomy with esophagitis with gastritis. The Veteran's digestive disorder is currently rated under Diagnostic Code 7346-7318, at 10 percent disabling. According to the March 2016 VA Form 9, the Veteran sought a 30 percent rating for esophagitis with ulcers. The Veteran filed a claim for an increased disability rating in March 2013. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the 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. 38 C.F.R. § 4.114 notes ratings under diagnostic codes 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 diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Diagnostic code 7346 is the code for hernia hiatal and diagnostic code 7318 is the code for gall bladder, removal of. The Veteran's status-post laparoscopic cholecystectomy with esophagitis and with gastritis is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation 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. The Regional Office originally granted service connection for esophagitis with gastritis, diagnostic code 7399-7346, with a noncompensable disability rating, and status-post laparoscopic cholecystectomy under code 7318, with a 10 percent disability rating. According to a Supplemental Statement of the Case dated in June 2017, esophagitis with gastritis condition was combined with the status post laparoscopic cholecystectomy as these two disabilities have the same symptomatology and rating criteria. A September 2014 private medical treatment record noted peptic ulcer on a problem list, without explanation of how ulcer was diagnosed. On a September 2014 VA Form 9, (interpreted by the Regional Office as a Notice of Disagreement) the Veteran contended he had three esophageal ulcers and had bowel movements immediately after eating, frequent leakage, heartburn that prevents eating, frequent bowel movements, and digestive problems. An August 2015 VA examination report for esophageal conditions found that the Veteran was noted to have Gastroesophageal Reflux Disease (GERD), substernal pain, and four or more vomiting episodes per year. Eating spicy food caused heartburn. The Veteran was currently taking Nexium. The report indicated that the Veteran did not have any other pertinent physical findings, complication, conditions, signs and/or symptoms related to an esophagitis condition. Additionally, with respect to intestinal conditions, a separate August 2015 VA examination report noted that the Veteran symptoms included diarrhea, which, per the report, the Veteran had attributed to his gallbladder removal. The report further noted that the Veteran experienced vomiting two to three times per week, but that he also attributed the vomiting to his migraines. The report did not clearly indicate whether the Veteran had symptoms that were attributable to his gallbladder removal and the severity of any present symptoms. The examiner noted that the Veteran had an endoscopy in 2008 which was positive for gastritis without peptic ulcers and esophagitis, also known as GERD. The August 2015 examination report indicated negative findings for ulcers. The Veteran has contended he has malnutrition due to vomiting and eating disorder from esophagitis as well as peptic ulcer. See, e.g., January 2016 Statement in Support of Claim. In his March 2016 VA Form 9, the Veteran argued that his intestinal conditions had also caused ulcers that caused lower chest pain on a daily basis. The Veteran claimed he gain 70 pounds, passed undigested food, and vomited weekly due to digestive problems. He also contended that he has diarrhea. Also, in March 2016, the Veteran submitted a copy of a medical record of an endoscopy, which he stated showed ulcers. A January 2021 VA examination for gallbladder and pancreas conditions notes a medical history of reflux and abdomen pain in 2008. An endoscopy showed gastritis. He had a CT scan of abdomen and it showed stones. His gallbladder was removed, and he was started on Nexium with the resolution of symptoms. He symptoms after gallbladder removal of heart burn, indigestion, substernal pain, stool always loose, diarrhea 90 percent of time (taking fiber helps), and after he eats, he needs to use the bathroom. He had loose bowels after eating with abdomen pain, lasts for about one hour, with occasional bowel incontinence. He had upper quadrant pain after he eats. Otherwise, the examination did not show any other abnormalities or symptoms. A January 2021 nutritional deficiencies VA examination showed that the Veteran claimed weight-gain and denied any weight loss and otherwise had no deficiencies or signs or symptoms. A January 2021 hematologic and lymphatic conditions, including leukemia, VA examination report showed no anemia or other symptoms and laboratory tests for hemoglobin level, hematocrit, red and white blood cell count, and platelet count were normal. A January 2021 VA examination report for esophageal conditions showed GERD. Medical history was the same for the gallbladder and pancreas condition examination. The examiner found that the Veteran had persistently recurrent epigastric distress, pyrosis, reflex, regurgitation, substernal pain, sleep disturbance (less than one day), and nausea and vomiting (four or more times a year for less than a day). A January 2021 VA examination for stomach and duodenal conditions found gastritis, with same medical history as the esophageal conditions and gallbladder and pancreas examination. He had recurring non-severe symptoms four or more times a year for less than one day and periodic abdominal pain. Otherwise, the examination report showed normal results or no abnormalities. A January 2021 VA examination for intestinal condition found irritable bowel syndrome. The medical history was that the Veteran has one loose bowel movement after eating occasionally after a meal, occurs three times a week. Does not occur all the time. Bowel movement is loose and watery and non-bloody. The Veteran also reported the same medical history as the other examinations. He had frequent episodes of bowel disturbance with abdominal distress. He had other symptoms, abnormalities, and otherwise had normal findings. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). With the exceptions of ulcers, the Board accepts the Veteran's descriptions of his symptoms and does not doubt he has these symptoms. VA examination reports documented these symptoms. Nonetheless, nowhere has it been argued or found that these symptoms are productive of considerable impairment of health. In addition, while the Veteran contends that he was malnourished, but review of his statements show he stated he gained weight and a VA examiner found no nutrient deficiencies and normal laboratory results. Therefore, while considered, these statements do not show malnourishment within the meaning of VA regulation, given the other medical records. In total, the Board accepts that the Veteran's descriptions of his symptoms as within the competency of lay person and finds them credible (excepting for ulcer), but these symptoms do not warrant a higher rating. With regards to ulcers, there was a report on a private medical record noting, on a problem list, the Veteran had ulcers and the Veteran reported that he had ulcers. The Veteran is competent to report what he was told. He may have been told he had ulcers at some point. However, such a statement from the Veteran is entitled to as much probative weight as the underlying medical evidence. This evidence is unclear, with a private medical record not showing what a finding of ulcer was based on and only noting it on a problem list. A VA examiner noted that the Veteran had an endoscopy in 2008 which was positive for gastritis without peptic ulcers. No ulcers were document in treatment records and VA examiners repeatedly found no evidence of ulcers. Therefore, the Board gives more weight to this medical evidence with regards to ulcers, as opposed to the isolated report on a problem list. It is more persuasive and shows the absence of ulcers. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The Board notes that a January 2021 VA examination report showed persistently recurrent epigastric distress, pyrosis, reflex, regurgitation, substernal pain, sleep disturbance (less than one day), and nausea and vomiting (four or more times a year for less than a day). However, there was no severe impairment of health, which the examiner specifically noted was not present. In addition, the Board has considered the other diagnostic codes, including 7318, which the Veteran previously had a separate rating under. Under Diagnostic Code 7318 for residuals of a cholecystectomy, a 10 percent rating is warranted for mild symptoms, and a 30 percent rating is warranted for severe symptoms. 38 C.F.R. § 4.114. In addition, severe symptoms are not shown. VA examination reports dated in January 2021 repeatedly noted that the Veteran's symptoms and the examiner found them to be non-severe in the January 2021 VA examination for stomach and duodenal condition, instead finding recurring non-severe symptoms. Thus, a higher rating under the DC 7318 criteria is not met or approximated and a rating in excess of 10 percent is not warranted. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a higher disability rating for status-post laparoscopic cholecystectomy with esophagitis and with gastritis. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply, and a rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Bowel disability The Veteran claims a bowel disability as due to a service-connected disease or injury. In March 2020, the Board remanded this issue. The Board noted that "in a November 2013 VA examination report, a VA examiner additionally opined that IBS was not cause by or a result of service-connected gallbladder removal. The examiner based this on a lack of literature supporting the association. The examiner indicated that IBS was a clinical diagnosis not based on tests or examinations, and that IBS was caused by a dysmotility disorder of the intestines. The examiner did not provide a clear opinion as to whether IBS was aggravated by the Veteran's service-connected gall bladder removal." Further, in an "August 2015 VA examination report, the examiner indicated that claimed irritable bowel syndrome was less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner reportedly based this opinion on review of the medical record and interview with the Veteran, and indicated that his symptoms were more likely than not related to gastroesophageal reflux disease (GERD)/esophagitis and residuals of gallbladder removal than to IBS." The Board, in the prior remand, noted that "[b]ased on the foregoing, it is unclear whether the Veteran has a current, identifiable bowel disorder, to include IBS, and whether such disorder is at least as likely as not caused by or aggravated by service-connected gall bladder removal. Thus, remand of this claim is warranted to afford the Veteran a new VA examination to obtain an adequate etiology opinion for all appropriately diagnosed bowel disorders." The remand directive noted that both causation and aggravation should be addressed. A January 2021 VA medical opinion repeated the 2013 VA medical opinion and noted the examiner agreed with this opinion. For aggravation, the examiner gave a negative opinion without rationale. The section for why baseline cannot be reported notes, as rationale, "N/A" and "not a pre-existing condition, aggravation does not apply." Given the failure to provide an aggravation opinion with rationale, an additional remand is necessary for an adequate rationale. In addition, in the January 2022 Written Brief Presentation, noted IBS could be due to PTSD, for which the Veteran is service connected at 70 percent disabled, citing medical literature. On remand, an opinion should be obtained to address this matter. 2. Male reproductive disability The same prior Board remand text notes that "the Veteran's service connection claim for decreased libido, he has contended that the disability was the result of medications that he took, and as a result of chronic pain. In the November 2013 VA examination report, the examiner diagnosed decreased libido, and opined that the condition was not caused by or a result of narcotic mediations taken for cervical disc disease. The examiner based this opinion on an apparent lack of medical literature. In his March 2016 VA Form 9, the Veteran asserted that his physicians had told him that oxycodone affected his libido and was a listed side effect of the medication. Regardless, the Board notes that the examiner did not consider the effects of the Veteran's other medications, to include medications for headaches, or the effects of his chronic pain on his libido, per the Veteran's contentions. Moreover, the examiner did not address whether the Veteran's decreased libido was aggravated by medications taken for service-connected disabilities or chronic pain. See id. Thus, remand of this claim is warranted to obtain a new opinion as to the nature and etiology of the Veteran's decreased libido." The remand directive notes that "the examiner is asked to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not(i.e., a 50 percent or greater probability), that the Veteran's decreased libido disability (a) was caused OR (b) is, or has been, aggravated (worsened beyond the natural progression) by service-connected musculoskeletal and neurological disabilities, to include as a result of medication (including oxycodone) to treat such disabilities, and/or chronic pain associated with the disabilities. Both causation and aggravation should be addressed." A January 2021 VA opinion was limited to whether cervical disc disease aggravated or caused erectile dysfunction and did not consider the multiple or service-connected musculoskeletal and neurological disabilities or pain. The examiner only addressed whether medication was the case the erectile dysfunction. A July 2021 addendum opinion provided to a January 2021 VA examination again only addressed whether medication was the cause of erectile dysfunction but did not address any of the other service-connected disabilities or aggravation. In addition, the representative, in the January 2022 Written Brief Presentation, noted erectile dysfunction could be due to PTSD, for which the Veteran is service connected at 70 percent disabled, citing medical literature. On remand, an opinion should be obtained to address this theory as well. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination for a bowel disability by an appropriate medical professional. The examiner must review the claims file. The examiner is asked to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's bowel disability (a) was caused OR (b) is, or has been, aggravated (worsened beyond the natural progression) by service-connected musculoskeletal, PTSD, or neurological disabilities, to include as a result of medication (including, but not limited to, oxycodone) to treat such disabilities, and/or chronic pain associated with the disabilities. Both causation and aggravation should be addressed for all three sets of service-connected disabilities, including PTSD, right and left lower extremity radiculopathy, thoracolumbar strain with intervertebral disc herniation, laparoscopic cholecystectomy with esophagitis with gastritis, scars associated with s/p laparoscopic cholecystectomy with esophagitis with gastritis, and any other relevant service-connected disease or injury. A complete rationale should be provided for each opinion. 2. Arrange for the Veteran to undergo a VA examination for a male reproductive disability, by an appropriate medical professional. The examiner must review the claims file. The examiner is asked to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's reproductive disability (a) was caused OR (b) is, or has been, aggravated (worsened beyond the natural progression) by service-connected musculoskeletal, PTSD, or neurological disabilities, to include as a result of medication (including, but not limited to, oxycodone) to treat such disabilities, and/or chronic pain associated with the disabilities. Both causation and aggravation should be addressed for all three sets of service-connected disabilities, including PTSD, right and left lower extremity radiculopathy, thoracolumbar strain with intervertebral disc herniation, laparoscopic cholecystectomy with esophagitis with gastritis, scars associated with s/p laparoscopic cholecystectomy with esophagitis with gastritis, and any other relevant service-connected disease or injury. A complete rationale should be provided for each opinion. N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.