Citation Nr: 22017985 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-44 902 DATE: March 27, 2022 ORDER Service connection for residual surgical scarring due to a tonsillectomy is granted. A disability rating of 30 percent for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for residuals of a neck strain, to include cervicalgia, is remanded. FINDING OF FACT 1. The Veteran's underwent a tonsillectomy during a qualifying period of service. 2. Over the period on appeal, the Veteran's GERD has manifested with symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, substernal arm or shoulder pain, reflux, nausea, vomiting and sleep disturbance caused by esophageal reflux, with considerable impairment to health; there are no indications of material weight loss, hematemesis, melena, or anemia, and his symptoms have not been productive of severe impairment of health resulting from GERD. CONCLUSION OF LAW 1. The criteria for service connection for residual surgical scarring due to a tonsillectomy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating of 30 percent, but no greater, for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to May 2000, and from August 2006 to January 2008, with additional service in the Reserves until 2019. It is noted that service connection for a neck disability was denied in a rating decision in an August 10, 2016 rating decision. The Veteran did not initiate an appeal of the August 10, 2016 decision. However, on August 30, 2017, additional, relevant service treatment records that existed but were not previously of record were received and added to the claims file. 38 C.F.R. § 3.156(c). As such, the claim of entitlement to service connection for a neck disability will be reviewed de novo. In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript is of record. Having reviewed the record evidence, to include the Veteran's hearing testimony, the Board has recharacterized the claims on appeal as stated above. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Reserve and National Guard service generally means active duty for training (ACDUTRA) and/or inactive active duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). The presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 only applies to periods of active duty and not to the Veteran's ACDUTRA or INACDUTRA with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or INACDUTRA, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 1. Entitlement to service connection for residuals of a tonsillectomy The Veteran seeks service connection for residuals of a tonsillectomy, to include surgical scarring. Upon review of the evidence of record, the Board finds service connection for residual surgical scarring due to a tonsillectomy is warranted. The Veteran has provided lay testimony and evidence showing that he was on duty when he underwent a tonsillectomy. The service treatment records show that the Veteran underwent a tonsillectomy on September 9, 2014. The Veteran submitted active duty orders showing that he was ordered for duty with support ordinance division from July 8, 2014 to September 26, 2014, for 81 days. Additionally, he submitted a statement from a Senior Medical Department Representative from the United States Marine Corps were stating the Veteran was on active duty or drilling status when he underwent a tonsillectomy, FESS, septoplasty and inferior turbinate reduction surgery on September 9, 2014, which had been command approved. A March 2016 scars DBQ noted two painful scars in the Veteran's throat post-tonsillectomy. Each measured 3 to 4cm by 1cm. The Board need not address whether removal of the tonsils itself is an injury or disease, as the surgery is considered an external trauma, rather than a degenerative process, and therefore an injury. See VAOPGCPREC 04-2002; but see Nielson v. Shinseki, 23 Vet. App. 56, 61 (2009) (the extraction of teeth as a result of periodontal disease is not "service trauma" as contemplated by 38 U.S.C. § 1712 (a)(1)(C)). Accordingly, service connection for residual surgical scarring due to a tonsillectomy is warranted. To the extent the Veteran has claimed dysphagia and painful swallowing as due to the tonsillectomy, as further discussed below, the Veteran's dysphagia and epigastric pain are a symptom of his service-connected GERD and are contemplated by the rating criteria for his GERD under Diagnostic Code 7346; therefore, he is already being compensated for his dysphagia and epigastric pain. Beyond the scars, the Veteran has not alleged additional disability associated with the tonsillectomy and the evidence of record does not indicate such a disability exists. Therefore, disability beyond surgical scarring has not been raised by the Veteran or the record, and consequently has not been considered. For the above reasons, the Board finds that the most persuasive evidence weighs in favor of the claim for service connection for residual surgical scarring due to a tonsillectomy and it is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, supra. Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. 2. Entitlement to a rating higher than 10 percent for GERD The Veteran seeks a higher rating for GERD. At the July 2021 Board hearing, he reported symptoms of heartburn, dysphagia, regurgitation, acid reflux, difficulty sleeping and substernal or arm or shoulder pain, which he asserted were productive of considerable impairment of health. The Veteran's GERD is presently rated at 10 percent under Diagnostic Code 7346. Diagnostic Code 7346 addresses hiatal hernia. A 30 percent rating is assigned 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 10 percent rating is assigned when two or more of the symptoms for the 30 percent evaluation are present with less severity. 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 Veteran underwent a VA examination in April 2015. He reported feeling like he had a narrowed throat. He described acid reflux, regurgitation and dysphagia with a "choking" like sensation and poor ability to swallow semi-soft foods. The Veteran endorsed sleep disturbance and related that he routinely slept in the upright position to avoid acid reflux towards his upper esophagus/throat area while laying down. Drinking or eating anything acidic or spicy would instantly trigger acid reflux. He noted being subject to a strict diet and requiring continuous medication. The Veteran related problems tasting food and described metallic and acidic taste in his mouth. The examiner noted pyrosis, reflux, regurgitation and sleep disturbance caused by esophageal reflux four or more episodes per year, lasting 1 to 9 days. No persistently recurrent epigastric distress with substernal arm or shoulder pain was noted. The examiner found no evidence of stricture, spasm or diverticulum of the esophagus. The examiner also noted no evidence of melena, weight loss, hematemesis, nausea, vomiting or anemia was noted. The Veteran reported that during lunch breaks at work he ate small portions very slowly. When he experienced retrosternal chest pain it affected his concentration and focus on his task and work. Treatment notes in March 2016, the Veteran underwent esophagram for complaints of trouble swallowing with epigastric pain. The clinician noted moderate GERD with dysphagia. The Veteran underwent a VA examination in May 2016. The Veteran was found to be essentially asymptomatic. He required continuous medication. The examiner found no evidence of stricture, spasm or diverticulum of the esophagus. The examiner also noted no evidence of melena, weight loss, hematemesis, nausea, vomiting or anemia was noted. A July 2016 VA disability benefits questionnaire (DBQ) examination for esophageal conditions noted diagnoses of GERD and hiatal hernia. The Veteran required continuous medication. The examiner noted endorsed persistently recurrent epigastric distress, pyrosis, reflux, regurgitation and substernal or arm or shoulder pain and sleep disturbance. He experienced three episodes per year, lasting 1 to 9 days. The examiner also noted no evidence of melena, nausea, vomiting, anemia or weight loss. The examiner found no evidence stricture, spasm or diverticulum of the esophagus. The examiner noted that the condition interfered with concentration and sleep, and also resulted in acid erosion of the teeth. A March 2021 DBQ examination for esophageal conditions noted complaints of regular GERD occurrences with worsening symptoms. Medication provided little relief. The Veteran reported regurgitating into mouth and always needing to keep water nearby. He had stomach and chest pain due to heartburn and cannot eat certain foods which cause an increase in symptoms. The examiner noted persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, nausea, vomiting and sleep disturbance caused by esophageal reflux that was productive of impairment of health. He experienced four or more episodes per year lasting 10 days or more. The examiner noted no anemia, weight loss, hematemesis or melena. The examiner found no evidence of stricture, spasm or diverticulum of the esophagus. The condition required the Veteran to take recurrent breaks at work, and when symptoms became severe, he would leave work early. On VA examination in November 2021, the examiner noted diagnoses of GERD and eosinophilic esophagitis. Treatment required continuous medication. The emxianer noted persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, nausea, vomiting and sleep disturbance caused by esophageal reflux. He experienced four or more episodes per year. The examiner found that the symptoms productive of considerable impairment to health. The examiner found no evidence of stricture, spasm, or diverticulum of the esophagus. There was no evidence of material weight loss, hematemesis or melena with moderate anemia. The examiner noted that a recent EGD with biopsy showed diagnosis of eosinophilic esophagitis. GI consults stated that the eosinophilic esophagitis was mainly in the distal esophagus and likely "driven" by the Veteran's GERD. The eosinophilic esophagitis was therefore a progression of GERD. A review of the Veteran's VA and private treatment records for the period on appeal does not provide any findings of any greater significance than those in the examination reports. Based upon the foregoing, a rating of 30 percent, but no greater, for the Veteran's service-connected GERD is warranted for the entirety of the appeal period. Collectively, the VA examination and DBQ reports showed symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, substernal arm or shoulder pain, reflux, nausea, vomiting and sleep disturbance caused by esophageal reflux. He experienced four or more episodes per year. The VA examiner in 2021 found that the symptoms were productive of considerable impairment to health. In addition, the frequency and duration of symptoms as noted in the examination, in conjunction with the Veteran's explanations at the Board hearing pertaining to the effect of her symptoms on his health, suggest considerable impairment of health. Thus, a rating of 30 percent for the Veteran's GERD is warranted. However, a rating in excess of 30 percent is not warranted at any time over the appeal period. There are no indications in any examinations, or in any of the Veteran's medical treatment records of material weight loss, hematemesis, melena, or anemia. Nor are there any indications that the Veteran's symptoms have been productive of severe impairment of health resulting from GERD. As to the Veteran's contention that he is entitled to a separate disability rating for symptoms of dysphagia, the Board finds that the Veteran's disability is appropriately considered and rated by his current 30 percent disability rating under Diagnostic Code 7346. The symptoms contemplated by the Diagnostic Code 7346 criteria include, among other things, dysphagia, which is defined as difficulty swallowing. See 38 C.F.R. § 4.114, Diagnostic Code 7346; see also DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 597 (32nd ed. 2012). The evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. As such, a separate, compensable rating is not permitted, as a separate rating for such symptoms would constitute pyramiding. The Board has also considered whether the Veteran is entitled to a higher rating under another diagnostic code. Given the diagnosis of eosinophilic esophagitis, the Board evaluated his condition under Diagnostic Codes 7203 for stricture of esophagus, Diagnostic Code 7204 spasm of esophagus, and Diagnostic Code 7205 diverticulum of esophagus. However, as there is no evidence of stricture, spasm, or diverticulum of the esophagus, a rating under Diagnostic Codes 7203, 7204, or 7205 is not warranted. 38 C.F.R. § 4.114. In sum, a rating of 30 percent, but no greater, for GERD is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment records and examination reports, shows that the Veteran remains employed. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a neck strain, to include cervicalgia, is remanded. The Veteran seeks service connection for residuals of a neck strain, to include cervicalgia. At the July 2021 Board hearing he asserted that he injured his neck picking up an MV-22 Osprey gun mount in 2014 during drill status. A statement from a Senior Medical Department Representative from the United States Marine Corps indicated that the Veteran was on active duty or drilling status when he reported neck pain after gun mount evolution on August 15, 2015. No line of duty determination was filed. Service treatment records show that in August 2015, the Veteran was seen for complaints of neck pain after lifting gun mount. He exhibited full range of motion of the neck. An assessment of "strain for now" was noted. A February 2017 MRI of the cervical spine showed disc desiccation. In August 2017, the Veteran was seen for complaints of stiffness, pain and headaches when he felt his neck heat and lock up after fast movement. He had difficulty with range of motion of the head. The Veteran related a history of hurting his neck in 2014 when he lifted a heavy object. In September 2017, the Veteran reported onset of neck pain after doing heavy lifting. Reportedly, the pain gradually worsened over time. Imaging studies of the cervical spine showed no significant degenerative changes or evidence of acute osseous abnormality. He was diagnosed with cervicalgia. The Veteran has not yet been afforded a VA examination in regard to his claim. The Board finds that the low threshold requirement has been met for a VA examination, and a remand is necessary for the VA to fulfill its duty to assist and afford the Veteran an examination to determine whether the Veteran currently suffers from residuals of an in-service neck strain. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for the neck, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records. If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Schedule the Veteran for an examination by an appropriate clinician to address the claims for service connection for a neck disability. The claims file must be thoroughly reviewed by the examiner in connection with the examination. All tests and studies deemed necessary should be conducted and all findings should be reported in detail. Following review of the claims file and an examination of the Veteran, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that any current neck disability found on examination is related to the Veteran's service, including a neck strain noted on August 15, 2015, while the Veteran was in active duty/drill status. Please explain why or why not. In formulating the opinion, the examiner is asked to comment on the service and post-service treatment records, to specifically include an August 2015 service treatment record that showed complaints of neck pain after lifting a gun mount, the February 2017 cervical spine MRI findings, and the Veteran's reported neck pain and stiffness after fast movement in August 2017. The examiner is advised that the Veteran is competent to report that he suffered neck pain during service and has had continued symptoms since that time. A complete, well-reasoned rationale must be provided for any opinion offered. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.