Citation Nr: 23014257 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 17-23 035 DATE: March 9, 2023 ORDER Entitlement to an initial rating of 40 percent for persistent nausea associated with thoracic radiculopathy is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to use of medications the Veteran experienced the equivalent of recurrent incapacitating episodes of nausea averaging 10 days or more in duration four or more times a year. 2. The Veteran is not unemployable due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 40 percent, but no higher, for persistent nausea associated with thoracic radiculopathy are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7304. 2. The criteria for a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In September 2019, December 2021, and September 2022 the Board remanded this matter for additional development. The AOJ complied with the September 2022 Board remand by sending the Veteran a VA Form 21-8940 and by issuing a supplemental statement of the case (SSOC). The Veteran's claims are now ready for Board review. 1. Entitlement to a rating in excess of 20 percent for persistent nausea. The Veteran seeks a rating in excess of 20 percent for his persistent nausea associated with thoracic radiculopathy. A February 2022 rating decision granted the Veteran an increased rating of 20 percent effective from November 24, 2015, the effective date service connection was granted. The Veteran's 20 percent rating has been assigned under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7304. It is rated by analogy under Diagnostic Codes 7399-7304, applicable to gastric ulcer. 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. 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. For example, Diagnostic Code 7399 is used to identify unlisted disabilities of the digestive system. However, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532 ; VAOPGCPREC 71-91 (Nov. 7, 1991). Under Diagnostic Code 7304, a 20 percent rating is warranted where there are recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestation; a 40 percent rating is warranted when the symptoms are less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The maximum 60 percent rating is warranted when there is pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. The Veteran's initial VA examination for his nausea disability was provided in October 2015. The examination report noted the Veteran to have severe and persistent nausea associated with thoracic radiculopathy. The report also noted that the Veteran had an inability to bend or stand straight during flare-ups. He further noted that the Veteran was unable to walk normally, sit, or recline normally without medication during flare-ups. The examination report notes that the Veteran had at least four weeks, but less than six weeks, of incapacitating episodes of intervertebral disc syndrome over the past 12 months. On VA examination on March 24, 2016 the Veteran reported that he was on continuous medication to control his nausea. The Veteran reported recurrent episodes of nausea that were not severe, four or more times a year, lasted 10 or more days. The Veteran denied incapacitating episodes and the examiner noted that the Veteran's condition did not impact his ability to work. On VA spine examination in December 2019, the VA examiner noted that the Veteran had been diagnosed with severe and persistent nausea and that he was taking medication for the condition. The examiner indicated that the Veteran experienced nausea when he was not on medication. The Veteran reported that he worked as an airport manager and that he had lost one week of work time in the last 12 months due to his service-connected back disabilities, including nausea. He said that he was unable to fly airplanes because he was taking Lyrica to treat his nausea. On VA examination in January 2022 the Veteran reported that his nausea disability had improved. The Veteran was on continuous medication for his nausea disability. The Veteran reported recurring episodes of nausea that were not severe, four or more times a year. He said that they lasted less than a day. The Veteran was not noted to have weight loss or anemia. The Veteran denied incapacitating episodes and the examiner noted that the Veteran's condition did not impact his ability to work. At a March 2022 hearing before a hearing officer the Veteran reported that he had been gaining weight. A November 2022 VA examination report notes that the Veteran was taking continuous medication for his nausea disability. The Veteran reported that he had recurrent episodes of nausea more than four times a year and that the episodes lasted less than a day. The Veteran denied having incapacitating episodes of nausea. The Veteran was not noted to have weight loss or anemia. The examiner noted that the Veteran's nausea did not impact his ability to work. The Board notes that the October 2015 examination report was filled out on a Thoracolumbar Spine Conditions Disability Benefits Questionnaire (DBQ), rather than on a Stomach Conditions DBQ. Although it states that the Veteran had from 4 to 6 weeks of incapacitating episodes of IVDS in the past year, finding all doubt in favor of the Veteran, the Board interprets the DBQ to actually indicate that he had from 4 to 6 weeks of incapacitating episodes of nausea in the past year. This interpretation is supported by subsequent VA thoracolumbar spine examination reports which all state that the Veteran does not have IVDS. Accordingly, again finding all doubt in favor of the Veteran, the Board finds that the October 2015 VA DBQ indicates that the Veteran met the criteria for a 40 percent rating under Diagnostic Code 7304. Specifically, the October 2015 DBQ is interpreted to indicate that the Veteran had the equivalent of recurrent incapacitating episodes of nausea averaging 10 days or more in duration at least four or more times a year. The Board recognizes that the subsequent VA medical examinations, dated in March 2016, December 2019, January 2022 and November 2022, show that the Veteran's nausea disability had greatly improved with his use of medication. Although these subsequent VA examination reports do not indicate that the Veteran had symptomatology of the severity to meet the criteria for a rating in excess of 20 percent, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). Diagnostic Code 7304 does not explicitly contemplate the ameliorative effects of medication. In light of the forgoing, the Board finds that the Veteran continued to meet the criteria for a 40 percent rating because the record indicates that his symptoms improved due to taking medication to treat his nausea. The record does not show that the Veteran experienced pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health, at any time since the grant of service connection, consequently he is not entitled to a rating in excess of 40 percent pursuant to Diagnostic Code 7304. Accordingly, an increased initial rating of 40 percent, but no higher, is granted for the Veteran's nausea disability from the date of service connection, November 24, 2015. See Fenderson v. West, 12 Vet. App. 119, 125 (1999). All doubt has been held in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to TDIU. The Veteran's claim for TDIU is considered to have been received in November 2015 when the Veteran submitted his claim for an increased rating for his low back disability and his claim for service connection for his nausea disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). At his March 2022 hearing before a hearing officer the Veteran reported that he was unable to work as a pilot due to his service-connected thyroid disability. He testified that he instead worked in administration. He reported that he would be retiring soon. He asserted that he was retiring because his service-connected thyroid disability interfered with his memory. VA will grant TDIU when the evidence shows that a veteran is precluded from securing or following any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A total disability rating may be assigned when the schedular rating is less than total, when, in the judgement of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one disability, the disability is rated 60 percent or more, or if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From November 24, 2015 to July 24, 2018 the Veteran had a combined rating of 50 percent for his service-connected disabilities. The 50 percent rating was made up of a 40 percent rating for his nausea disability, a 10 percent rating for lumbar spine compression fracture, and a 10 percent rating for tinnitus. During that time period the Veteran did not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a). He did not have a combined rating of 70 percent or more. From July 24, 2018 to August 1, 2022 the Veteran was assigned a 100 percent rating for hypothyroidism. From August 1, 2022 the Veteran has had a combined rating of 70 percent for his service connected disabilities. He had a 40 percent rating for his nausea disability, a 20 percent rating for his cervical spine disability, a 20 percent rating for his lumbar spine compression fracture, a 10 percent for tinnitus, a 10 percent for left upper extremity radiculopathy, a 10 percent rating for left lower extremity radiculopathy and a noncompensable rating for hypothyroidism. From August 1, 2022 the Veteran has met the applicable percentage standards for TDIU set forth in 38 C.F.R. § 4.16(a). The medical evidence does not indicate that the Veteran has been unemployable due to his service-connected disabilities. In particular, the VA examinations for the Veteran's service-connected disabilities have indicated that those disabilities have resulted in two weeks or less of missed work during a 12 month period. The October 2015 VA examination for nausea did show incapacitating episodes and the examiner noted that the Veteran was unable to work as a commercial pilot due to that disability. However, there is no indication that he was unable to work at his job as an airport manager at that time. The Board finds that the Veteran has not met the criteria for TDIU at any time since November 24, 2015. During this time the Veteran has been fully employed. Several times, most recently on September 29, 2022, VA sent the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to fill out and return to VA. This would document the Veteran's employment history. However, the Veteran has never submitted this form in support of his claim. The Board recognizes that the Veteran stated at the March 2022 hearing that he would be retiring soon. However, as the Veteran did not return the requested VA Form 21-8940 the Board must decide the Veteran's claim based on the evidence of record. This evidence shows that the Veteran is fully employed. As there is no confirmation that he ever stopped working full time, and as the record indicates that the Veteran is employed as a airport manager, for which there is no indication that such could be considered marginal employment, he has not met the criteria for TDIU. He has not been shown to be unemployable due to service-connected disabilities at any time during the appeal period. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim for TDIU is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.