Citation Nr: 1517160 Decision Date: 04/22/15 Archive Date: 04/24/15 DOCKET NO. 08-26 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating (or evaluation) for the service-connected post cholecystectomy syndrome with gastroesophageal reflux disease (GERD) in excess of 10 percent for the period from February 27, 2009 to February 26, 2014. 2. Entitlement to an increased disability rating (or evaluation) for the service-connected post cholecystectomy syndrome with GERD in excess of 30 percent. 3. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, not otherwise specified (NOS), and depression, NOS, to include as secondary to the service-connected post cholecystectomy syndrome with GERD. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran (Appellant); Veteran's spouse ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from January 1989 to January 1995. This appeal comes to the Board of Veterans' Appeals (Board) from May 2007, April 2009, December 2009, November 2012, and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A claim for service connection for PTSD was received in April 2006. The May 2007 rating decision, in pertinent part, denied service connection for PTSD. A claim for an increased rating for post cholecystectomy syndrome was received in February 2009. The April 2009 rating decision denied an increased rating in excess of 10 percent for the service-connected post cholecystectomy syndrome. The December 2009 rating decision granted service connection for GERD and continued the 10 percent disability rating for the post cholecystectomy syndrome with GERD. The November 2012 rating decision continued the denial of a disability rating in excess of 10 percent for the post cholecystectomy syndrome with GERD. The April 2014 rating decision assigned a 30 percent disability rating for the post cholecystectomy syndrome with GERD from February 26, 2014, creating "staged" increased disability ratings. This decision bifurcates the issue of entitlement to an increased disability rating for the post cholecystectomy syndrome with GERD into two separate issues: (1) in excess of 10 percent from February 27, 2009 to February 26, 2014 and (2) in excess of 30 percent for the entire increased rating period. Such bifurcation of the issue permits a grant of a 30 percent disability rating for the post cholecystectomy syndrome with GERD from February 27, 2009 to February 26, 2014 (the Veteran is already in receipt of a 30 percent rating from February 26, 2014) to which the evidence of record shows the Veteran is entitled, without delay of this grant of benefits awaiting additional development relating to whether the Veteran is entitled to a disability rating in excess of 30 percent for any part of the increased rating period. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim for service connection for a mental disability includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran initially filed a claim for service connection for PTSD that was received by VA in April 2006. In an October 2012 written statement, the Veteran also claimed service connection for anxiety and depression, to include as secondary to the service-connected post cholecystectomy syndrome with GERD. The claim on appeal has, therefore, been recharacterized to conform to Clemons. In December 2014, the Veteran testified at a personal hearing in San Antonio, Texas (Travel Board hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issues of whether new and material evidence has been received to reopen service connection for irritable bowel syndrome and service connection for gastroparesis and unusually fast digestive tract have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See October 2012 supplemental claim for compensation (VA Form 21-526b). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of an increased disability rating in excess of 30 percent for post cholecystectomy syndrome with GERD and service connection for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT For the increased rating period from February 27, 2009 to February 26, 2014, the Veteran's post cholecystectomy syndrome with GERD has more nearly approximate severe symptomatology, to include persistent diarrhea, constipation, vomiting, nausea, burning reflux, regurgitation, and mid and upper abdominal pain. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the increased rating period from February 27, 2009 to February 26, 2014, the criteria for an increased disability rating of 30 percent for post cholecystectomy syndrome with GERD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7318 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2014). The Board is granting a 30 percent disability rating for the post cholecystectomy syndrome with GERD for the increased rating period from February 27, 2009 to February 26, 2014, and is remanding the issues of a disability rating in excess of 30 percent for the post cholecystectomy syndrome with GERD and service connection for an acquired psychiatric disorder; therefore, no discussion regarding VCAA notice or assistance duties is necessary. Increased Rating for Post Cholecystectomy Syndrome with GERD from February 27, 2009 to February 29, 2014 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2014). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2014). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2014). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered, and found inappropriate, the assignment of staged ratings. For the increased rating period from February 27, 2009 to February 26, 2014, a 10 percent disability rating was assigned for the service-connected post cholecystectomy syndrome with GERD under 38 C.F.R. § 4.114, Diagnostic Code 7318 (residuals of gall bladder removal). A cholecystectomy is the surgical removal of the gallbladder. Dorland's Illustrated Medical Dictionary 354 (31st ed. 2007). Under Diagnostic Code 7318, a noncompensable rating is warranted where the condition is nonsymptomatic; a 10 percent rating is warranted where there are mild symptoms; and, a 30 percent rating is warranted for severe symptoms. 38 C.F.R. § 4.114. The Veteran is also service connected for GERD, which is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it will be 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 (2014). The Board finds that GERD is most closely analogous to a hiatal hernia (Diagnostic Code 7346) in terms of symptomatology and resulting disability picture. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the diagnostic code which reflects the veteran's predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Throughout the course of this appeal, the Veteran has contended that the service-connected post cholecystectomy syndrome with GERD has been manifested by more severe symptoms than that contemplated by the 10 disability rating assigned from February 27, 2009 to February 29, 2014. In the February 2009 claim, the Veteran reported that his stomach is constantly upset with pain and irritation and he has constant constipation and diarrhea episodes. The Veteran reported at least six times in the previous six months where he had an episode of diarrhea and did not make it to the restroom in time. At the December 2014 Board hearing, the Veteran testified that the post cholecystectomy syndrome with GERD has been productive of severe impairment of health and contended that he is entitled to a 60 percent disability rating. VA and private treatment records, dated throughout this part of the period on appeal, note that the Veteran reported symptoms of persistent diarrhea, constipation, vomiting, nausea, burning reflux, regurgitation, and mid and upper abdominal pain. The treatment records note that the Veteran has been prescribed multiple medications to manage his gastrointestinal symptoms. The VA and private treatment records also note that the Veteran has consistently reported multiple episodes of diarrhea where he has not made it to the restroom in time. At the October 2006 VA examination, the Veteran reported frequent loose stools and nausea associated with epigastric stress. At the March 2009 VA examination, the Veteran reported that his stomach is constantly upset with pain and irritation, constipation, and diarrhea. The VA examiner noted continued problems with defecation, urgency, and diarrhea. The VA examination report notes that the Veteran's gastrointestinal symptoms were very disruptive to his occupational functioning. At the November 2009 VA examination, the Veteran reported diarrhea, constipation, and heartburn. The VA examiner noted symptoms of nausea with no vomiting, pyrosis (heartburn), some epigastric distress, and reflux with no regurgitation. The VA examination report notes that the Veteran had difficulty in working because of frequent bowel movements. A January 2010 private treatment record notes that the Veteran reported right and left upper quadrant pain. May to December 2010 private treatment records note that the Veteran reported mid-abdominal pain several times a week with associated symptoms of bloating and nausea. A September 2012 VA treatment record notes that the Veteran's gastrointestinal symptoms had worsened over the previous three years. A January 2014 VA treatment record notes that the Veteran has severe, uncontrolled GERD with no relief. December 2013 to February 2014 VA treatment records note that the Veteran reported burning reflux sensation up to four times per day with symptoms worse at night and after meals. In February 2014, the Veteran underwent a laparoscopic nissen fundoplication with pyloroplasty. As noted above, the Veteran is service connected for both post cholecystectomy (surgical removal of the gallbladder) syndrome (rated under Diagnostic Code 7318) and GERD (rated by analogy to hiatal hernia under Diagnostic Code 7346). Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other, but rather a single disability rating will be assigned under the diagnostic code reflecting the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. After a review of all the evidence, lay and medical, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the increased rating period from February 27, 2009 to February 29, 2014, the Veteran's post cholecystectomy syndrome with GERD has been manifested by persistent diarrhea, constipation, vomiting, nausea, burning reflux, regurgitation, and mid and upper abdominal pain, reflecting severe symptomology, and more nearly approximate the criteria for a 30 percent disability under Diagnostic Code 7318. 38 C.F.R. §§ 4.3, 4.7, 4.114. The Board will not address in this decision entitlement to an increased rating in excess of 30 percent or any extraschedular considerations, to include entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), for any part of the increased rating period because the Board has bifurcated and remanded the remaining question of entitlement to an increased disability rating for the service-connected post cholecystectomy syndrome with GERD in excess of 30 percent. The Board will address these matters in a later decision if the benefits sought on appeal are not granted by the AOJ upon remand. ORDER An increased disability rating of 30 percent, for the period from February 27, 2009 to February 29, 2014, for the post cholecystectomy syndrome with gastroesophageal reflux disease is granted. REMAND Increased Rating for Post Cholecystectomy Syndrome with GERD Review of the record indicates that the last VA examination was conducted in August 2014. The VA examiner noted that the Veteran did not have any symptoms attributable to the service-connected gallbladder disability. The Board finds that the August 2014 VA examination report is inadequate for rating purposes as it is inconsistent with the other evidence of record, specifically, the VA and private treatment records and VA examination reports dated throughout the course of this appeal as well as the Veteran's lay statements, which have consistently reflected extensive symptomatology associated with the post cholecystectomy syndrome with GERD. At the December 2014 Board hearing, the Veteran testified that his post cholecystectomy syndrome with GERD has been manifested by pain, material weight loss, vomiting, inability to eat solid foods, and other symptoms productive of severe impairment health, and contended that he is entitled to a 60 percent disability rating. The Veteran testified that his gastrointestinal disabilities have continued to worsen. Based on the above, the Board finds that further VA examination is required so that the decision is based on a record that contains a current and adequate examination. Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991) (where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Service Connection for an Acquired Psychiatric Disorder The contention liberally construed for the Veteran is that he has PTSD due to stressors arising from his active service aboard submarines. At the December 2014 Board hearing, the Veteran testified to multiple stressors stemming from his fear of hostile military or terrorist activity while participating in classified submarine missions. The Veteran reported stressors including being fired upon during a live fire exercise while on a classified operation in enemy territorial waters and receiving small arms fire while serving as lookout when the submarine was not submerged. See also June 2007, August 2014, and October 2014 written statements. Alternatively, the Veteran contends that his anxiety and depression were caused or aggravated by the service-connected post cholecystectomy syndrome with GERD. See October 2012 supplemental claim for compensation (VA Form 21-526b). A May 2009 VA treatment record notes that the Veteran reported his severe gastrointestinal issues were aggravating his anxiety and depressive symptoms. October 2012 VA treatment records note that the Veteran reported that he continues to feel depressed by his multiple gastrointestinal disabilities. The Veteran has currently diagnosed Axis I psychiatric disorders. VA treatment records dated throughout the course of this appeal note diagnoses of PTSD. See e.g., December 2008 and January 2011 VA treatment records. A November 2008 VA treatment record notes a diagnosis of anxiety. An August 2011 VA treatment record notes that the Veteran reported experiencing PTSD symptoms, including intrusive thoughts and nightmares associated with service. The treatment record notes diagnoses of anxiety disorder, NOS, and depression, NOS. No VA or private medical opinion report is of record with an etiology opinion specifically addressing the questions of whether the Veteran's currently diagnosed acquired psychiatric disorders were (1) incurred in or caused by active service or (2) caused or aggravated by the service-connected post cholecystectomy syndrome with GERD. The Board finds that remand is required to obtain a medical opinion regarding this claim. 38 C.F.R. § 3.159(c)(4) (2014); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Accordingly, the issues of an increased disability rating in excess of 30 percent for post cholecystectomy syndrome with GERD and service connection for an acquired psychiatric disorder are REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to (1) assist in determining the current severity of the service-connected post cholecystectomy syndrome with GERD and (2) obtain an opinion as to the nature and etiology of the claimed acquired psychiatric disorders, to include as secondary to the service-connected post cholecystectomy syndrome with GERD. The claims file should be provided to the examiner. The VA examiner should review the evidence associated with the record. All indicated tests and studies should be conducted. A) With respect to the service-connected post cholecystectomy syndrome with GERD, the VA examiner should comment on the level of impairment of health caused by the Veteran's symptomatology. B) With respect to the claimed acquired psychiatric disorders, VA examiner should note all reported psychiatric symptoms, diagnose all Axis I acquired psychiatric disorders, and then, based upon a review of all the record (including service treatment records, VA and private treatment records, history of the Veteran, and clinical findings), should offer the following opinions with supporting rationale with respect to each diagnosed disability: 1) Does the Veteran meet the criteria for PTSD? If a diagnosis of PTSD is deemed appropriate, the clinician should identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). In so doing, the examiner should determine whether the claimed stressor(s) has been verified or is related to the Veteran's fear of hostile military or terrorist activity, including the Veteran's contentions that he generally experienced a constant state of fear while serving on submarines during service. 2) Is it at least as likely as not (50 percent or greater probability) that each current Axis I acquired psychiatric disorder was incurred in or caused by active service? 3) Is it at least as likely as not (50 percent or greater probability) that each current Axis I acquired psychiatric disorder was caused by the service-connected post cholecystectomy syndrome with GERD? 4) Is it at least as likely as not (50 percent or greater probability) that each current Axis I acquired psychiatric disorder was aggravated (permanently worsened in severity beyond a natural progression) by the service-connected post cholecystectomy syndrome with GERD? 2. Then, readjudicate the appeal. If any of the issues remain denied, provide the Veteran and the representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs
