Citation Nr: 24010643
Decision Date: 03/05/24	Archive Date: 03/05/24

DOCKET NO. 20-29 038
DATE: March 5, 2024

ORDER

Service connection for pes planus is denied.

Service connection for hepatitis A is denied.

A 30 percent disability rating, but no higher, prior to January 2, 2020, for the service connected sinusitis is granted.

A disability rating of 10 percent, but no higher, prior to January 2, 2020, for the service connected gall bladder stones with polyp (hereafter gall bladder stones) is granted.

FINDINGS OF FACT

1. The weight of the competent and probative evidence is against finding that the Veteran's pre-existing pes planus underwent any increase in severity during service; the evidence does not demonstrate that the pre-existing pes planus underwent an increase in disability during service.

2. The evidence persuasively weighs against finding that the Veteran has had hepatitis A at any time during or approximate to the pendency of the claim.

3. Prior to January 2, 2020, the Veteran's service-connected sinusitis was manifest by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, but did not manifest as following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.

4. During the period on appeal, the Veteran's gall bladder stones with polyp was manifested by no more than moderate symptoms involving occasional episodes of diarrhea and abdominal distension; the Veteran did not experience moderately severe or severe symptoms.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.306.

2. The criteria for the establishment of service connection for hepatitis A have not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for the assignment of 30 percent disability rating, but no higher, prior to January 2, 2020, for service-connected sinusitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Codes (Code) 6512.

4. The criteria for entitlement to an initial rating of 10 percent, but no higher, for the service-connected gall bladder stones with polyp have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7317-7301.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2004 to November 2007.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for sinusitis and gall bladder stones with polyp at a noncompensable disability rating with an effective date of September 10, 2013. The RO denied service connection for pes planus and hepatitis A.

The Veteran timely filed a notice of disagreement (NOD) in January 2016. 

In an April 2020 rating decision, the RO granted a 30 percent disability rating for sinusitis and a 10 percent disability rating for gall bladder stones with poly, with an effective date of January 2, 2020. A statement of the case (SOC) was issued in May 2021 and the Veteran's VA Form 9, substantive appeal to the Board, was received in June 2021. In that VA Form 9, the Veteran contested only the effective date of the increased rating.

After additional development, in a March 2022 rating decision, the RO granted a 50 percent disability rating for sinusitis with an effective date of October 28, 2021. In a June 2022, supplemental statement of the case (SSOC), the RO continued the denial of a compensable rating for sinusitis and gall bladder stones with polyps prior to January 2, 2020.

For the claims for service connection for pes planus and hepatitis A, a statement of the case (SOC) was issued on May 27, 2020. The Veteran filed a VA Form 9 substantive appeal to the Board on August 1, 2020, with a signature date of July 30, 2020. 

Generally, an appeal to the Board must be filed "within 60 days from the date that the [RO] mails the [SOC] to the [Veteran], or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later." 38 C.F.R. § 19.52(b)(1). The record reflects that the Veteran untimely filed his appeal to the Board in August 2020, more than 1 year from the date of notification of the rating decision on appeal and more than 60 days from the issuance of the SOC. The record does not reflect that the Veteran requested or was granted an extension.

However, "failure to file a timely [appeal to the Board] does not automatically foreclose an appeal, render a claim final, or deprive the [Board] of jurisdiction." Rowell v. Principi, 4 Vet. App. 9, 17 (1993). The VA may implicitly waive objections to the timeliness of a Veteran's appeal by continuing to process such appeals as though they were timely filed. See Gonzales-Morales v. Principi, 16 Vet. App. 556, 557 (2003); see also Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). The Board finds that the RO implicitly waived any objection to the timeliness of the Veteran's appeal when it certified the Veteran's case to the Board in August 2020. The Board will therefore adjudicate the Veteran's claim on the merits.

A July 2022 Report of General Information notes that the Veteran requested to "withdraw all claims and appeals." However, he never put this request in writing, despite a request for such in a July 2022 VA letter. As such, the Board will proceed with its decision. The Board would point out that this appeal raises no additional issues. 

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1)a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

1. Entitlement to service connection for pes planus

The Veteran asserts that his pes planus is related to or was aggravated by his active service.

The Veteran underwent a medical examination in December 2003 prior to entry into service. The Veteran was noted to have mild, asymptomatic pes planus.

The Veteran filed a claim for pes planus in September 2014. The claim was denied in a January 2015 rating decision because the evidence shows the Veteran's pes planus existed prior to service and there is no evidence in the service treatment records (STRs) of any complaints or treatment for any worsening during service. The Veteran filed an NOD in January 2016 stating he has pes planus in service and that it has worsened to the point where he has to wear wide shoes and that he went from having a small arch to having no arch at all.

VA treatment records show a report of bilateral foot pain in August 2016 where the Veteran was noted to have pes planus and prescribed insoles. 

In a September 2019 informal hearing, the Veteran reported he went to medical while in service for complaints of feet pain, knee pain and back pain and that the doctors told him it was due to his flat feet.

In a January 2020 VA examination, the Veteran had a diagnosis of pes planus in 2003 and the examiner noted a diagnosis of plantar fasciitis in 2018. The Veteran stated the onset was having foot, knee and back pain and that his current symptoms are heel and arch pain from prolonged walking and standing and he wears arch supports. The examiner opined that the claimed condition clear and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran's records show mild asymptomatic pes planus on his entrance examination in December 2003. The Veteran's records do not show any complaints about foot pain while in service and that his first record of complaints about foot pain was in 2016 and he was prescribed insoles. The examiner concluded that the Veteran's records do not show his pes planus was aggravated during service and that the pes planus showed change thirteen years after service.

In the May 2020 SOC, the RO again denied the claim for pes planus because it preexisted service and was not aggravated beyond its natural progression. The RO remarked that the Veteran did not submit any additional evidence or contentions regarding this issue.

In the Veteran's August 2020 VA Form 9, he argued that his pes planus has been getting worse to the point where he needs custom insoles.

A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran was noted to have pes planus on his December 2003 enlistment examination, and the presumption of soundness therefore does not apply to this claimed disability.

The issue becomes whether the Veteran incurred aggravation of preexisting pes planus during service. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Similarly, a temporary or intermittent flare-up of the preexisting disorder during service is not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).

If the preexisting disorder underwent an increase in severity during service, clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). The term "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held that once a preexisting disability is noted upon entry into service, "the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish that there was an increase in disability during service. If an increase in disability is shown during service, then the presumption of aggravation arises, and the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). See also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Thus, once a veteran has established through competent evidence that his/her preexisting disability, which was noted on entry, underwent an increase in severity during service, the presumption of aggravation can be rebutted by the government through clear and unmistakable evidence establishing that the increase in disability during service was the result of the natural progression of the disease. 38 C.F.R. § 3.306.

The Veteran's STRs do not reflect any complaints of, or treatment for, pes planus or a foot pain during his active service.

The evidence in the record of foot pain issues is in the VA treatment records in August 2016, some thirteen years after separation from service. The Veteran has not submitted any other private medical records showing foot treatment prior to the August 2016 record.

The weight of the competent and probative evidence is against finding that the Veteran's pes planus underwent an increase in severity during service. The Veteran's STRs do not reflect that his underlying pre-existing pes planus increased in severity during service. In several in-service reports of medical history, the Veteran does not describe any foot issues. Moreover, the Veteran's post-service medical records do not reflect any sort of foot complaints or treatment for more than thirteen years after service. The January 2020 VA examiner provided a competent medical opinion explaining that the Veteran's pes planus preexisted service and found no evidence of an increase or worsening during service.

While the Veteran is competent to report symptoms that are observable to him, and the Board finds no reason to doubt his credibility, the most probative evidence comes from his STRs, which do not reflect in-service aggravation and the January 2020 VA examination opinion which indicated that in-service aggravation was not shown by the medical evidence.

Accordingly, service connection for pes planus is denied, and service connection for aggravation of pre-existing pes planus is denied.

2. Entitlement to service connection for hepatitis A 

The Veteran asserts that his hepatitis A began in service.

The Board concludes that the Veteran does not have a current diagnosis of hepatitis A and has not had one at any time during the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

At the outset, the Veteran's STRs reflect the Veteran was diagnosed with hepatitis A and treated for the diagnosis in service. However, the records reflect the diagnosis resolved prior to separation.

The Veteran filed a claim for hepatitis A in September 2014. The claim was denied in a January 2015 rating decision because the evidence does not show a persistent disability because hepatitis A is an acute condition which is not considered a chronic disability to VA purposes. The Veteran filed an NOD in January 2016 stating that although it is not a debilitating condition, it caused permanent damage because he was told by the doctor in Germany that he would have to make lifestyle choices that would put stress on his liver. The Veteran added that "if I have problems in the future I want to be covered."

In a January 2020 VA examination, the examiner noted a diagnosis of hepatitis A in 2006, but that the condition resolved. The examiner stated current symptoms are elevated liver enzymes but that the Veteran does not require continuous medication, has no other symptoms or incapacitating episodes, and no symptoms related to other liver conditions. The examiner opined that the claimed condition was at least as likely as not incurred in service; however, that his labs show the hepatitis A was viral and that hepatitis A is an acute type that does not cause any long-term problems or complications. Rather, the Veteran had an acute episode of hepatitis A during service that completely resolved.

In the May 2020 SOC, the RO denied service connection for hepatitis A because while there is a diagnosis in service, there is no evidence of persistent treatment afterwards. The RO remarked that the Veteran did not submit any additional evidence or contentions regarding this issue.

In the Veteran's August 2020 VA Form 9, he argued that he is dealing with increased liver enzymes and has had to change his whole lifestyle to minimize problems with his liver. If he did not have this issue, he would not have to monitor what he eats or drinks.

There is no competent medical evidence showing a current diagnosis of hepatitis A or related diagnosis. While the Veteran believes he has a current diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no diagnosis to be present. Without a current diagnosis, service connection for hepatitis A is not warranted.

Increased Ratings

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran asserts that an earlier effective date of September 10, 2013, should be granted for his sinusitis and gall bladder stones. As will be explained below, the claim will be analyzed as an increased rating claim for the period on appeal prior to the grant of compensable ratings on January 2, 2020, for both in sinusitis and gall bladder stones.

1. Entitlement to a compensable disability rating prior to January 2, 2020, for the service connected sinusitis

The Veteran asserts that his compensable rating should go back to the date he was granted service connection for sinusitis on September 10, 2013. This is not a challenge to the effective date of service connection, but rather a request that he be assigned a compensable rating from September 10, 2013. The Veteran contends that he was granted a compensable rating for sinusitis effective January 2, 2020, and that the rating should actually go back to the date of his original claim.

This is a misunderstanding of the laws of effective dates and as such, is really a claim for a higher rating prior to January 2, 2020. Additionally, as the Veteran did not state a disagreement with the January 2015 rating decision regarding the effective date, the January 2016 NOD is taken as a disagreement with the rating assigned for the service connected sinusitis.

By way of history, the Veteran filed a claim for bad allergies and migraines in September 2014. In a January 2015 rating decision, the RO granted service connection for migraines with a 30 percent disability rating, allergic rhinitis with a 10 percent disability rating, and sinusitis at a noncompensable rating; all with an effective date of September 10, 2013. In a January 2016 NOD, the Veteran checked "evaluation of disability" and for percentage sought listed 10 percent for sinusitis. The Veteran added lay statements about the frequency of episodes of his sinusitis. The Veteran requested a Decision Review Officer review. In a September 2019 informal conference with the RO, the Veteran reported his sinusitis condition is worse and requested a new examination.

In an April 2020 rating decision, the RO granted a 30 percent disability rating for sinusitis with an effective date of January 2, 2020, based on the results of a VA examination on that same date. In a May 2020 statement in support of claim, the Veteran stated he requests an earlier effective date to September 10, 2013, and that he filed his notice of disagreement within one year of the rating decision.

In August 2020, the RO sent a notice to the Veteran indicating that they could not accept the letter submitted in May 2020 as an NOD because it is passed the one year time frame after the rating decision. The notice stated that a review of the claims file shows that the Veteran filed an NOD in January 2016 for the issues of an increased evaluation for sinusitis and did not file an NOD for an earlier effective date.

In November 2020, the Veteran filed a statement in support of claim where he requested an earlier effective date for two of his disabilities from January 2, 2020, to September 10, 2013, due to CUE (clear and unmistakable error). The Veteran asserted that he originally disagreed with his disability rating and filed an NOD before the one year was up. He asserts that when he received an increase in his disability rating in May 2020, the effective date was not for when he first filed for these claims. The Veteran stated that he never filed for a rate increase and that he only filed for a notice of disagreement. 

In a November 2020 rating decision, the RO denied an earlier effective date for sinusitis because no clear and unmistakable error was found. The RO explained that the decision to grant an effective date of January 2, 2020, for the increased rating for sinusitis, is not considered to have been clearly and unmistakably erroneous because the alleged error is an exercise of judgment which cannot be characterized as undebatably erroneous. The Veteran did not appeal this decision, and the issue of CUE is not before the Board.

In February 2021, the Veteran filed a VA Form 20-0996 request for Higher-Level Review of the May 2020 rating decision. The Veteran again stated he has never filed for an increased rating and that he only filed a notice of disagreement in January 2016. The Veteran asserts that the grant of an increase in 2020 gave an effective date of January 2020, instead of the date of his claim, and he requests his effective date be moved to the same date as the date he submitted the claim.

A rating decision that partially grants an increased rating claim is not an initial rating decision eligible to opt-in to the Appeals Modernization Act (AMA). 38 C.F.R. § 3.2400. As the May 2020 rating decision did not grant the full benefits sought on appeal, the appeal remains in the legacy review system.

In a May 2021 SOC, the RO confirmed the denial of a compensable rating for sinusitis and gall bladders stones prior to January 2, 2020. In the  June 2021 VA Form 9 substantive appeal to the Board, the Veteran argued that he had filed an NOD because he did not agree with the 0 percent rating for his sinusitis and that his symptoms did not just show up in the past few years and were the reason why he filed the claim in the first place. The Veteran stated the first examination they did not go through the frequency of his episodes, that the exam only lasted twenty minutes, and that the 2020 exam was over an hour because the examiner was very thorough. The Veteran again argued his effective date should be the date he first filed his claim and not January 2020.

In a March 2022 rating decision, the RO granted a 50 percent disability rating for sinusitis effective October 28, 2021. In a June 2022 SSOC, the RO denied a compensable rating for sinusitis prior to January 2, 2020. The claim was then certified to the Board.

The Veteran was originally granted service connection for sinusitis as noncompensable under 38 C.F.R. §§ 4.71a, 4.97, 4.71a, Diagnostic Code 6512 for chronic frontal sinusitis.

Chronic frontal sinusitis is rated under the General Rating Formula for Sinusitis under 38 C.F.R. § 4.97, Code 6513. Under this code, a noncompensable rating is warranted for sinusitis detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum schedular 50 percent rating is warranted for sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Code 6513.

A Note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Codes 6513.

In a January 2015 VA examination, the examiner noted diagnoses of migraines in 2005, chronic sinusitis in 2006, and allergic rhinitis in 2005; all during active service. Regarding sinusitis, the examiner noted symptoms only detected by x-ray, no incapacitating episodes in the past 12 months and two non-incapacitating episodes in the past 12 months. The examiner noted that the Veteran has not had sinus surgery.  

In the January 2015 rating decision, the RO granted service connection sinusitis with a noncompensable rating due to sinusitis only being detected by x-ray.  

In the Veteran's January 2016 NOD, he stated he suffers from a couple of episodes during the spring and a couple in the fall and that they are mostly not debilitating, but on occasion he has to go to the hospital for treatment.

In September 2019, the Veteran submitted private treatment records showing that he had sinus surgery described as a septoplasty, bilateral inferior turbinate reduction, endoscopic sinus surgery including bilateral maxillary antrostomy and bilateral anterior ethmoidectomy and adenoidectomy, in January 2012.

In the January 2020 VA examination, the examiner noted a 2012 sinus surgery where the Veteran's adenoids were removed. The examiner noted symptoms of chronic sinusitis, headaches, pain of affected sinus, tenderness of affected sinus, purulent discharge and daily sinus congestion and drainage with weekly maxillary pressure and monthly headaches. The examiner noted seven or more non-incapacitating episodes in the past 12 months, and no incapacitating episodes in the past 12 months. The examiner noted the Veteran has had repeated sinus-related surgical procedures performed. In conclusion, the examiner stated that the Veteran's diagnosis did not change and that there were no additional diagnoses to render.

Based on the January 2020 VA examination, the RO increased the disability for sinusitis to 30 percent effective January 2, 2020, the date of the VA examination. 

As the Veteran has only specifically challenged the period on appeal prior to January 2, 2020, discussion of the evidence after that date is not required here.

The January 2015 VA examination was incorrect when it stated the Veteran did not have sinus surgery. This is an important piece of evidence when rating sinusitis under Diagnostic Code 6512. As the private treatment records and the January 2020 VA examination confirm a sinus surgery in 2012, the January 2015 VA examination is inadequate.

In the January 2016 NOD, the Veteran explained that he has sinus episodes a couple times in the spring and a couple times in the fall that are not debilitating but he sometimes has to go to the hospital for treatment. This is consistent with the STRs showing the Veteran has more episodes in the spring and fall and the record also shows he has continuous medication for his symptoms.

The next VA examinations in January 2020 indicated the Veteran had more than seven non-incapacitating episodes and indicated that the condition has stayed the same since onset. In light of this evidence, prior to January 2, 2020, the evidence is at least as evenly balanced that the Veteran suffered from sinusitis of more than six non-incapacitating episodes per year. For the entire period on appeal prior to January 2, 2020, a 30 percent disability rating for the service connected sinusitis is granted. Prior to January 2, 2020, the evidence does not show that the service-connected sinusitis manifests to symptoms such as following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, such that a 50 percent disability rating is not warranted.

2. Entitlement to a compensable disability rating prior to January 2, 2020, for gall bladder stones

The Veteran asserts that his compensable rating should go back to the date he was granted service connection on September 10, 2013. As stated above, this is not a challenge to the effective date of service connection, but rather a request that he be assigned a compensable rating from September 10, 2013. The Veteran contends that he was granted a compensable rating for gall bladder stones effective January 2, 2020, and that the rating should actually go back to the date of his original claim.

The procedural history for the service connected gall bladder stones is the same as the sinusitis, so it will be truncated here.

Service connection for gall bladders stones with polyp was granted in a January 2015 rating decision with a noncompensable disability rating effective September 10, 2013. In his January 2016 NOD, the Veteran checked "evaluation of disability" and for percentage sought listed 10 percent for gall bladder stones with polyp. The Veteran added lay statements about the frequency of constipation, diarrhea, abdominal distention from his gall bladder stones. In a September 2019 informal conference with the RO, the Veteran reported his gall bladder stones had worsened and requested a new examination.

In an April 2020 rating decision, the RO granted a 10 percent disability rating for gall bladder stones with an effective date of January 2, 2020, based on the results of a VA examination on that same date. In a May 2020 statement in support of claim, the Veteran stated he requests an earlier effective date to September 10, 2013, and that he filed his notice of disagreement within one year of the rating decision.

In August 2020, the RO sent a notice to the Veteran indicating that they could not accept the letter submitted in May 2020 as an NOD because it is passed the one year time frame after the rating decision. The notice stated that a review of the claims file shows that the Veteran filed an NOD in January 2016 for the issues of an increased evaluation for gall bladder stones and did not file an NOD for an earlier effective date.

In November 2020, the Veteran filed a statement in support of claim where he requested an earlier effective date for two of his disabilities from January 2, 2020, to September 10, 2013, due to CUE (clear and unmistakable error). The Veteran asserted that he originally disagreed with his disability rating and filed an NOD before the one year was up. He asserts that when he received an increase in his disability rating in May 2020, the effective date was not for when he first filed for these claims. The Veteran stated that he never filed for a rate increase and that he only filed for a notice of disagreement. 

In a November 2020 rating decision, the RO denied an earlier effective date for gall bladder stones because no clear and unmistakable error was found. The RO explained that the decision to grant an effective date of January 2, 2020, for the increased rating is not considered to have been clearly and unmistakably erroneous because the alleged error is an exercise of judgment which cannot be characterized as undebatably erroneous. The Veteran did not appeal this decision and the issue of CUE is not before the Board.

In a May 2021 SOC, the RO confirmed the denial of a compensable rating for gall bladders stones prior to January 2, 2020. In the Veteran's June 2021 VA Form 9 substantive appeal to the Board, the Veteran argued that he had filed an NOD because he did not agree with the 0 percent rating for his gall bladder and that his symptoms did not just show up in the past few years and were the reason hy he filed the claim in the first place. The Veteran stated the first examination they did not go through the frequency of his episodes and that the exam only lasted twenty minutes and that the 2020 exam was over an hour because the examiner was very thorough. The Veteran again argued his effective date should be the date he first filed his claim and not January 2020.

In a June 2022 SSOC, the RO denied a compensable rating for gall bladder stones prior to January 2, 2020. The claim was then certified to the Board.

The Veteran's gall bladder stones are rated by analogy under DC 7317-7301. DC 7317 instructs to rate gall bladder injuries as peritoneal adhesions (DC 7301). 38 C.F.R. § 4.114, DC 7317.

Under DC 7301, a 0 percent rating is warranted for mild adhesions of peritoneum. A 10 percent rating is warranted for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted for moderately severe adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. 38 C.F.R. § 4.114, DC 7301.

In a January 2015 VA examination, the Veteran was shown to have a diagnosis of gall bladder stones with polyp in January 2007. The history describes that while being seen for hepatitis in service, an ultrasound showed he had gall bladder stones and the presence of a polyp but no signs of obstruction. The Veteran reported no current symptoms related to his gall bladder and no current treatment for the same. The examiner remarked that the Veteran was not currently symptomatic.

In the Veteran's January 2016 NOD, he asserted that he constantly goes through bouts of constipation, diarrhea, and abdominal distention and requested a 10 percent rating.

VA treatment records from 2016 and 2017 show complaints of diarrhea, constipation, and stomach pain. In an April 2016 Lipid consult result, the Veteran complained of constipation, diarrhea, hematochezia or melena. The note stated that the Veteran was tested and told he had high levels of cholesterol and needed to change his diet and exercise. The Veteran indicated that he used to weigh 325 lbs and he is still trying to lose weight. In a May 2016 AMB care telephone note, the Veteran complained of still having pain in his stomach and more frequent diarrhea. In an in clinic appointment, the Veteran complained of diarrhea for four and a half months and that he gets diarrhea when he eats spicy or greasy food mostly on the weekends. The Veteran was advised to avoid trigger foods. 

In a July 2016 primary care note, the Veteran reported when he eats greasy (food), he gets diarrhea. The physician noted that the Veteran has right upper abdominal pain and gets diarrhea when eating greasy or spicy foods and ordered a CT of the abdomen and pelvis. In a November 2017 staff radiologist note, the Veteran had a CT of the abdomen and pelvis showing gall bladder sludge but no discrete radiopaque stones. In a September 2017 gastroenterology outpatient note, the Veteran reported several months with intermittent discomfort (not pain) in his right or left flanks, often after eating. He reported chronic diarrhea but not associated with side pain. No nausea, vomiting, or upper abdominal pain. The physician determined that the flank pain was almost certainly not GI related, and that the chronic diarrhea was probably functional, and he doubted it was irritable bowel syndrome. A December 2017 GI flexible sigmoidoscopy report showed an indication of chronic diarrhea but normal findings on examination. 

In a January 2020 VA examination, the Veteran reported his symptoms began in 2006 with loose stools and he was diagnosed with gall bladder stones with polyp. He stated his symptoms have been the same since the onset and he has loose stools with occasional abdominal pain. The Veteran takes fiber tablets, antidiarrheal tablets and is doing a diet modification. The examiner noted symptoms of colic attacks of the gallbladder four or more times per year, infrequent attacks of colic gallbladder with moderate symptoms. This exam was the basis for the RO granting a 10 percent disability rating effective January 2, 2020, the date of the VA examination. 

The evidence of record is at least evenly balanced as to whether the Veteran has occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. Although the January 2015 VA examiner stated that the Veteran had no current gall bladder symptoms, the evidence from VA treatment records shows the Veteran has a history of complaints of diarrhea, constipation, and abdominal pain throughout the period on appeal. In his January 2016 NOD, the Veteran stated he had been suffering from bouts of constipation, diarrhea, and abdominal distention. In the September 2019 informal hearing with the RO, the Veteran reported abdominal pain and stomach pain. In the January 20020 VA examination, the Veteran reported that his symptoms had stayed the same since onset in 2006. 

Additionally, in the Veteran's STRs there is an August 2007 report of medical assessment where the doctor wrote the Veteran continues with RUQ (right upper quadrant) pain after eating since his hepatitis in January 2007, which is also the time frame in which his gall bladder stones with polyp were diagnosed. 

As such, prior to January 2, 2020, a 10 percent disability rating is warranted for the service-connected gall bladder stones with polyp.

A 30 percent disability rating is not warranted because the evidence does not show that the Veteran suffers from moderately severe symptoms described as partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. The evidence also does not show that a 50 percent disability rating is warranted for severe symptoms described as definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage.

Resolving all reasonable doubt in favor of the Veteran, prior to January 2, 2020, the Veteran's symptoms more nearly approximate moderate symptoms under Diagnostic Code 7301, and a 10 percent disability rating for the service-connected gall bladder stones with polyp is warranted.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robinson, C. B.

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.