Citation Nr: 18160609
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 09-48 283
DATE:	December 27, 2018
ORDER
Service connection for type II diabetes mellitus, secondary to traumatic lumbar myositis with L5-S1 disc bulging and/or fatty liver with mild liver function test abnormalities, is denied.
Service connection for sleep problems, secondary to traumatic lumbar myositis with L5-S1 disc bulging, is denied.
Service connection for a bilateral hand disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging, is denied.
Service connection for a bilateral elbow disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging, is denied.
The reduction of the disability rating for esophagitis from 10 percent to 0 percent, effective May 1, 2008, was not proper; a 10 percent rating is restored.
A rating in excess of 10 percent for esophagitis and fatty liver with mild liver function test abnormalities is denied.
FINDINGS OF FACT
1. Diabetes mellitus did not manifest in service or to a compensable degree within one year of separation from active service; it is not otherwise etiologically related to service, and is not caused or aggravated by his service-connected traumatic lumbar myositis with L5-S1 disc bulging and/or fatty liver with mild liver function test abnormalities.
2. The Veteran’s sleep apnea did not manifest in service; it is not otherwise etiologically related to service, and is not caused or aggravated by his service-connected traumatic lumbar myositis with L5-S1 disc bulging.
3. The Veteran’s bilateral peripheral neuropathy of the hands did not manifest in service or to a compensable degree within one year of separation from active service; it is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability.
4. The Veteran’s bilateral olecranon bursitis or degenerative arthritis of the elbows did not manifest in service or to a compensable degree within one year of separation from active service; it is not otherwise etiologically related to service, and is not caused or aggravated by a service-connected disability.
5. A March 2006 rating decision assigned an initial 10 percent rating for esophagitis, effective December 11, 1998.
6. An August 2008 rating decision reduced the 10 percent evaluation for esophagitis to 0 percent, effective May 1, 2008; the rating has been in effect for more than 5 years.
7. The reduction of the rating from 10 percent to 0 percent disabling was not proper because the evidence on which the reduction was based did not reflect an actual improvement in the Veteran’s condition.
8. Throughout the period on appeal, the Veteran’s fatty liver condition has been asymptomatic.
9. Throughout the period on appeal, the Veteran’s esophagitis has manifested with infrequent episodes of epigastric distress with pyrosis, nausea, occasional vomiting, and regurgitation with substernal pain, but was not persistently recurrent, or productive of considerable impairment of health.
CONCLUSIONS OF LAW
1. The criteria for service connection for type II diabetes mellitus, secondary to traumatic lumbar myositis with L5-S1 disc bulging and/or fatty liver with mild liver function test abnormalities, have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
2. The criteria for service connection for sleep problems, secondary to traumatic lumbar myositis with L5-S1 disc bulging, have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.
3. The criteria for service connection for a bilateral hand disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging, have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
4. The criteria for service connection for a bilateral elbow disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging, have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.
5. The criteria for a restoration of a 10 percent rating for esophagitis, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7399-7346.
6. The criteria for a rating in excess of 10 percent for esophagitis and fatty liver with mild liver function test abnormalities have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.113, 4.114, DC 7399-7346.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1977 to December 1978.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the claims for service connection, continued the noncompensable rating for the service-connected fatty liver condition, and reduced the 10 percent rating to 0 percent for the service-connected esophagitis condition.
These matters were remanded by the Board in April 2014 and in September 2016 for further development, which has been completed.
In a September 2018 rating decision, the RO combined the evaluations of the service-connected esophagitis and fatty liver conditions, pursuant to 38 C.F.R. § 4.114, and assigned a 10 percent rating for the combined conditions, effective June 6, 2018.  As this rating did not constitute a full grant of the benefits sought, the claim remains on appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include hypertension, manifesting to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).
1. Entitlement to service connection for type II diabetes mellitus, secondary to traumatic lumbar myositis with L5-S1 disc bulging and/or fatty liver with mild liver function test abnormalities.
The Veteran seeks service connection for diabetes mellitus.  He contends that his condition is secondary to his service-connected traumatic lumbar myositis with L5-S1 disc bulging condition (hereinafter “back disability”).  See October 2008 VA Form VA Form 21-4138, Statement in Support of Claim.  The September 2016 remanded this issue for clarification based on the findings made at the May 2014 VA examination.  As such, this issue has been recharacterized to align with those findings.
Service treatment records are silent for complaints or symptoms related to diabetes mellitus.  A glucose test was done at the November 1978 separation examination; the result was negative.  The Veteran indicated he was in a good state of health on his separation Report of Medical History.
A January 1981 laboratory report performed in conjunction with his general compensation and pension examination showed a negative result for the glucose test.  The first record for diabetes mellitus was not until March 2004.  
At the October 2006 VA examination for diabetes mellitus, the examiner provided a negative nexus opinion, but the Board determined the rationale was inadequate and remanded for a new examination in April 2014.
At a May 2008 VA examination for his service-connected fatty liver condition, the examiner opined that the most likely etiology for the condition was his obesity, diabetes mellitus, or a combination of both.
Pursuant to the remand, the Veteran was afforded another VA examination in May 2014.  The examiner opined that it was less likely than not related to service.  The examiner noted that the Veteran has a couple of risk factors for diabetes mellitus, such as obesity and family history.
That examiner also opined that the Veteran’s service-connected back and liver disabilities did not cause or aggravated the diabetes mellitus.  These disabilities were not known to have a pathophysiologic relationship with diabetes mellitus.  The Board determined a clarifying opinion was necessary to whether a relationship existed between the diabetes mellitus and liver conditions, and thus, remanded this matter in September 2016.
At the June 2018 VA examination, the examiner opined that the Veteran’s diabetes mellitus was less likely than not related to service.  The rationale was that the Veteran’s service treatment records and medical records within one year after service were silent for a diagnosis or treatment of diabetes mellitus.  He was not initially diagnosed with diabetes mellitus until 2004, which is more than 25 years after service.  The examiner also cited an “uptodate” medical reference article, which stated that the Veteran’s type II diabetes mellitus was thought to be caused by a combination of genetic and environmental factors.
With respect to its relation to the service-connected fatty liver condition, the examiner noted that it was currently asymptomatic, as shown by the June 2018 liver VA examination report.  The examiner opined that the diabetes mellitus condition was not caused by or aggravated by the Veteran’s service-connected fatty liver condition.  The rationale was that current medical literature does not support an etiological link between fatty liver and diabetes mellitus.  In addition, as the fatty liver condition was not producing any functional limitations, it would not cause or aggravate the diabetes mellitus condition.
Service connection is not warranted in this case.  
The service treatment records were negative for symptoms, treatment of or a diagnosis for diabetes mellitus.  The condition was not noted in service or within a year of discharge, and there was not continuity thereafter.  The Veteran has not asserted chronicity in service or continuity of symptoms since.  Accordingly, 38 C.F.R. § 3.303 does not provide an avenue of service connection based on chronicity or continuity of symptomatology.  Service connection for diabetes mellitus may also not be presumed as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a).  
The claims file otherwise contains no competent opinions linking the Veteran’s disability to service.  The Veteran’s service treatment records are negative for a diagnosis of diabetes.  VA treatment records did not link the diabetes mellitus to service.  The June 2018 examiner provided a negative nexus opinion supported with an adequate rationale.  There is no competent medical opinion linking the current diabetes to service or similar evidence suggesting a causal connection.  
Further, the claims file contains no competent opinions indicating that his service-connected back and liver disabilities caused or aggravated his diabetes mellitus condition.  The Board finds the June 2018 VA examination report to be highly persuasive and probative, as the examiner has reviewed the claims file and provided adequate rationales with the medical opinions.  The Veteran, as a lay person, is not competent diagnose diabetes mellitus or determine its etiology as this is not a simple medical condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  
In sum, the evidence weighs against a nexus between the Veteran’s current diabetes mellitus disability and active military service, to include as secondary to traumatic lumbar myositis with L5-S1 disc bulging and/or fatty liver with mild liver function test abnormalities.  Accordingly, the benefit of the doubt doctrine does not apply.  Service connection is not warranted.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
2. Entitlement to service connection for sleep problems, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging.
The Veteran seeks service connection for his sleep apnea.  He has a current diagnosis for sleep apnea.  He contends that his service-connected back disability prevents him from sleeping and that he does not have restful sleep as a result.  See October 2008 VA Form 21-4138, Statement in Support of Claim.  After a review of the evidence, the Board finds that service connection is not warranted.
The service treatment records contained no complaints, history or findings consistent with sleep apnea.  On his November 1978 Report of Medical History at the time of separation, the Veteran denied a history of shortness of breath or frequent trouble sleeping.  On examination, the Veteran’s nose, sinuses, lungs and chest were clinically evaluated as normal.
In January 2010, the Veteran was diagnosed with sleep apnea in a VA sleep study.  He was placed on a continuous positive airway pressure (CPAP) machine for treatment.  Other VA treatment records showed periodic check-ups.
Pursuant to the April 2014 remand, an independent medical opinion was requested in January 2015.  The examiner opined that the sleep apnea condition was less likely than not caused or aggravated by the Veteran’s back disability and was at least as likely as not related to multiple complex medical conditions, including diabetes mellitus with associated peripheral neuropathies.  The rationale was that the Veteran’s sleep apnea improved with the use of the CPAP machine, thereby indicating that the back disability did not cause or aggravate the sleeping problems.  In September 2016, the Board found this issue intertwined with the claim for service connection for diabetes mellitus and deferred adjudication.
Pursuant to the September 2016 remand, the Veteran was afforded a VA examination in June 2018.  He reported that he had sleeping problems since 2009, has been under treatment with a CPAP machine, was sleeping around 5 continuous hours, and feeling better.  The examiner, after review of the claims file and in-person examination, opined that the sleep apnea condition was less likely than not related to service.  The rationale was that his service treatment records were silent for diagnosis of, treatment for, or symptoms related to sleep apnea.  He was not diagnosed with sleep apnea until 2010, which was more than 30 years after service.  In addition, the Veteran’s sleep apnea was not caused or aggravated by his diabetes mellitus as current medical literature did not support any etiological link between the two conditions.
For the reasons stated below, the Board finds that service connection for sleep apnea is not warranted on a direct or secondary basis.
The Veteran’s service treatment records contained no complaints of or treatment for trouble sleeping or breathing problems.  He was not provided with a diagnosis for sleep apnea during active service.  There was no diagnosis of sleep apnea until the January 2010 sleep study, which is many years after service.  The Board further notes that no competent medical evidence is of record that supports a finding that the Veteran’s sleep apnea began in service or is directly related to active service.  The opinion expressed by the June 2018 VA examiner is against such a finding.  The Board notes that the examiner was familiar with the Veteran’s medical history from review of his VA claims folder and the opinion expressed on this matter was supported by cogent rationale which referenced the Veteran’s documented medical history.  Most notably, the Veteran reported that his sleeping problems began in 2009, which is well after separation from service.  There is no competent opinion to the contrary.
Further, the evidence of record is against a finding on a secondary basis.  The January 2015 independent medical examiner found that the Veteran’s sleeping problems improved with the use of the CPAP machine, thereby indicating that the sleep apnea is independent of his service-connected back disability.  As noted earlier, the Board has determined that service connection for diabetes mellitus is not warranted.  As a result, secondary service connection is not possible as due to diabetes mellitus.  See 38 C.F.R. § 3.310; Harder v. Brown, 5 Vet. App. 183, 187-89 (1993).  Moreover, secondary service connection is not warranted as due to the service-connected back disability.  The Veteran has not otherwise provided or identified any competent and probative evidence to support his contentions.
In reaching these decisions, the Board finds that the Veteran has not shown to possess any specialized training to provide a competent medical opinion on this point.  See Jandreau, 492 F.3d at 1376-77.
As the preponderance of the competent evidence is against the claim, the benefit of the doubt doctrine is not for application, and service connection for sleep problems is not warranted.  See 38 U.S.C. § 5107; 38 C.F.R. §3.102.
3. Entitlement to service connection for a bilateral hand disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging.
4. Entitlement to service connection for a bilateral elbow disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging.
The Veteran is seeking service connection for a bilateral hand and elbow disability due to his service-connected back disability.  He has a diagnosis for olecranon enthesopathy and degenerative arthritis of the elbows.  See October 1997 VA Form 10-10; June 2018 VA examination.
The Veteran has also been diagnosed with carpal tunnel syndrome and bilateral peripheral neuropathy of the upper extremities, which are both associated with diabetes mellitus.  See July 2002 and August 2011 VA examinations.  The Board remanded these conditions in September 2016 as it was intertwined with the claim on appeal for service connection for diabetes mellitus.  However, the Board has now determined that service connection for diabetes mellitus is not warranted.  As a result, secondary service connection is not possible as due to diabetes mellitus.  See 38 C.F.R. § 3.310; Harder v. Brown, 5 Vet. App. 183, 187-89 (1993).  Therefore, the Board will address these claims under the remaining theories for service connection.
The Veteran’s service treatment records are completely silent as to any complaints of or treatment for any bilateral hand or elbow conditions.  His November 1978 separation examination listed his upper extremities as normal. 
Following his separation from service, the first post-service medical evidence referencing a hand or elbow condition was almost 20 years after his discharge from the service.  A February 1997 X-ray report revealed bilateral olecranon enthesopathy of the elbows, with early degenerative changes of the left elbow joint.  A September 1998 VA medical record indicated that the Veteran was seen for his 4th finger of the right hand after falling out of bed.
He underwent a VA examination in July 2002.  At the examination, he reported pain only to his right hand with fracture of the right little finger and none with respect to his elbows.  The examiner opined that it was less likely than not his right-hand condition was related to service or caused by his service-connected back disability, as the right-hand condition did not increase in severity.  The rationale was that the Veteran’s service treatment records were silent for a right-hand condition, and that he has had a history of falls with fracture to the 4th and 5th fingers of the right hand.
At an August 2011 VA examination for joints, the examiner provided a diagnosis only for peripheral neuropathy in left and right hands and gave a negative secondary nexus medical opinion.  The Board remanded these matters in April 2014, to determine the nature and etiology of all identifiable hand and elbow conditions.
At the May 2014 VA examination for joints, the examiner provided diagnoses for bilateral olecranon bursitis of the elbows and bilateral wrist strain with carpal tunnel syndrome.  The examiner opined that the bilateral elbows and wrist conditions were due to the Veteran’s obesity and aging.  The pathophysiology of those conditions is not etiologically related to the service-connected back conditions.  The examiner noted that the carpal tunnel syndrome was related to his diabetes mellitus condition.
In June 2018, the Veteran underwent separate VA examinations for his elbows and hands.  Regarding the hand examination, the examiner could not find an objective bilateral hand musculoskeletal condition.  The examiner explained that the Veteran’s subjective complaints are part and parcel related to bilateral peripheral neuropathy of the upper extremities, which was etiologically due to his diabetes mellitus condition.  
An X-ray report of the elbows showed that the Veteran had degenerative arthritis.  The examiner opined that the bilateral degenerative arthritis of the elbows was less likely than not related to service.  The rationale was that his service treatment records were silent for complaints, treatments, or evaluation for an elbow condition.  The records within two years of service were silent for an elbow condition.  The examiner also explained that degenerative arthritis is an expected change related to the normal aging process and not due to active service.  Moreover, diabetes mellitus did not cause or aggravate his degenerative arthritis condition, as current medical literature does not show a link between the two conditions.
Given the above, the Board finds that service connection is not warranted for either a bilateral hand or elbow disability under any theory of entitlement.
The preponderance of the evidence is against the claim for service connection on a presumptive basis.  The Veteran’s service treatment records and medical records within one year of service does not show any bilateral hand or elbow condition.  The Veteran has not contended that his hand or elbow symptoms occurred in or has continued since service.  The initial diagnosis for an elbow condition was not until February 1997, which was almost 20 years after service.  For these reasons, service connection for on a presumptive basis is not warranted.  38 C.F.R. §§ 3.307, 3.309. 
On a direct basis, there is also no competent evidence showing any bilateral hands or elbow disabilities during service or within the year following service.  There is no competent evidence linking any of his identified bilateral hands or elbow disabilities to service.  VA medical records show that the Veteran was seen for his right hand after a fall from his bed.  The June 2018 examiner could not provide a diagnosis for a bilateral musculoskeletal hand condition.  The examiner also opined that the degenerative arthritis of the elbows was an expected change related to the normal aging process.  There is no medical opinion to the contrary.
Further, the evidence does not demonstrate that the Veteran’s service-connected back disability caused or aggravated any hand or elbow condition.  The May 2014 examiner opined that his bilateral olecranon bursitis of the elbows was due to the Veteran’s obesity and aging process.  The pathophysiology of those conditions is not etiologically related to the service-connected back disability.  The Board finds these combined medical opinions and rationale do not demonstrate a relationship between any identified hand or elbow condition with service.  The evidence of record has also not shown that it was caused or aggravated by a service-connected disability.
Moreover, as a lay person, the Veteran is not competent to diagnose or provide nexus opinions regarding olecranon bursitis or degenerative arthritis of the elbows or carpal tunnel syndrome; such matters require medical testing, training, and expertise to determine.  The Veteran has not shown he is competent to provide such expertise.  See Jandreau, 492 F.3d at 1376-77.  
In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  As a result, service connection is not warranted for a bilateral hand or elbow disability, secondary to diabetes mellitus and/or traumatic lumbar myositis with L5-S1 disc bulging.  See 38 U.S.C. § 5107; 38 C.F.R. §3.102.
Propriety of the Reduction
The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing.  Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e).  The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires.  38 C.F.R. § 3.105(e), (i)(2)(i).
5. Propriety of the reduction of the disability rating for esophagitis from 10 percent to 0 percent, effective May 1, 2008.
Service connection for esophagitis was granted in a March 2006 rating decision and an initial 10 percent rating was assigned, effective December 11, 1998.
The appeal arises from the August 2008 rating decision, which reduced the disability rating from 10 percent to 0 percent, effective May 1, 2008.
The Veteran was not notified of the proposed reduction of his disability rating in accordance with 38 C.F.R. § 3.105(e).  However, as the rating action that implemented the rating reduction did not change the Veteran’s overall disability rating, a reduction of compensation payments did not occur, and the procedural safeguards of 38 C.F.R. § 3.105(e) do not apply.  See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007).  And as this decision grants the appeal (i.e., restores a 10 percent rating for esophagitis), any procedural omission is harmless.
Reducing a rating also brings concurrent substantive requirements that must be followed.  The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the veteran’s disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.  Thus, in any rating reduction case it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000).  Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered.  Dofflemeyer v. Derwinski, 2 Vet. App. 227 (1992).
Historically, at the March 1999 VA examination, the Veteran reported epigastric pain with heartburn.  The examiner noted that he was diagnosed with gastroesophageal reflux disease (GERD) via endoscopy.  The examiner diagnosed the Veteran with a hiatal hernia and esophagitis, grade III-IV.  
The October 2006 VA examiner noted a history of hiatal hernia with esophagitis, but did not find evidence of a hiatal hernia or reflux on examination.  However, the Veteran reported that he experienced reflux and heartburn symptoms daily, with vomiting occurring during severe reflux episodes.
The reduction was based upon findings on a May 2008 VA examination.  The Veteran reported vomiting several times a week, with heartburn and regurgitation occurring daily.  On that examination, the examiner did not find evidence of hiatal hernia, esophagitis, or evidence of an upper gastrointestinal (GI) abnormality.  The RO determined that the Veteran did not exhibit two or more symptoms as pursuant to the rating criteria, and thus, reflected an improvement and reduced the 10 percent rating to 0 percent.
The February 2011 and June 2018 VA examinations indicated that the Veteran continued to have daily heartburn, burning epigastric pain, regurgitation of stomach, nausea, and vomiting.  Specifically, at the June 2018 examination, the examiner found that the Veteran suffered from GERD since the 1990s, with epigastric and lower retrosternal burning pain, acid reflux that rose up to the throat that awakens him at night, and resulted in occasional nausea and infrequent vomiting.
Given the above, the record does not establish that the rating reduction was warranted.  The Veteran was granted entitlement to an evaluation of 10 percent disabling for his esophagitis disability on the basis of symptoms of intermittent epigastric distress, pyrosis, and regurgitation or vomiting. 
Although the VA examiner in May 2008 indicated that the Veteran did not find evidence of hiatal hernia, esophagitis, or evidence of an upper gastrointestinal (GI) abnormality, he did note the subjective reflux symptoms reported by the Veteran.  These same symptoms of intermittent epigastric distress, pyrosis, and regurgitation or vomiting were consistently shown on the VA examination reports throughout the period on appeal. 
Thus, the evidence, when taken as a whole, does not show an actual improvement in the Veteran’s esophagitis disability, resulting in an improvement in his ability to function under the ordinary conditions of life and work; reexamination in February 2011 and June 2018 did not disclose improvement of its disability.
After resolving any benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s esophagitis disability did not demonstrate actual improvement and, therefore, the reduction was improper and restoration of a 10 percent evaluation for the Veteran’s service connected esophagitis, effective May 1, 2008, is granted.
Increased Rating
Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities.  38 U.S.C. § 1155.  Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition.  38 C.F.R. § 4.1.  When rating the Veteran’s service-connected disability, the entire medical history must be reviewed.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board must also fully consider the lay assertions of record.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  
Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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.  After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).   The Board acknowledges that multiple distinct degrees of disability might be experienced which result in different compensation levels from the time the increased rating claim was filed until a final decision is made.  Staged ratings apply to both initial and increased rating claims.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).
6. Entitlement to an initial rating in excess of 10 percent for esophagitis and fatty liver with mild liver function test abnormalities.
Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other.  Rather, these diseases of the digestive system, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition.  They are to be assigned a single disability rating based on the predominant disability picture, with elevation to the next higher level where the severity of the overall disability picture warrants.  38 C.F.R. §§ 4.113, 4.114.  To do otherwise would amount to impermissible pyramiding, or the assignment of multiple separate ratings for the same symptoms of disability.  38 C.F.R. § 4.114.
The Veteran’s esophagitis is currently assigned a 10 percent rating, under 38 C.F.R. § 4.114, DC 7399-7346.  His fatty liver with mild liver function test abnormalities was initially assigned a noncompensable, or 0 percent rating, under 38 C.F.R. § 4.114, DC 7399-7312.
Under DC 7312, a 10 percent rating applies where there are symptoms such as weakness, anorexia, abdominal pain, and malaise.  A 30 percent rating applies where there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss.
However, the Veteran’s medical records, to include VA examinations in February 2011, May 2014, and June 2018, have shown the fatty liver condition to be asymptomatic.  The examiners have found the liver function tests were consistently normal.  In September 2018, the RO integrated the fatty liver condition into one diagnostic code with the esophagitis condition pursuant to Section 4.114; separate compensable ratings are not warranted.  See 38 C.F.R. §§ 4.113, 4.114; September 2018 rating decision.
He contends that the severity of his esophagitis and fatty liver conditions warrant a higher rating.  After a review of the evidence of record, the Board finds that a higher rating is not warranted.
First, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case, the rating schedule does not provide a specific diagnostic code for esophagitis, so the Veteran's condition has been rated analogously.
Conditions not specifically listed in the rating schedule may be rated by analogy under the DC for a closely related disease or injury.  38 C.F.R. §§ 4.20, 4.27.  It will be permissible to rate under a closely rated disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. 38 C.F.R. § 4.20; Lendenmann v. Principi, 3 Vet. App. 345 (1992).
The Board found that § 4.114 and its DCs best encompassed the Veteran’s disability picture for esophagitis, to include GERD.  More specifically, the criteria under DC 7346 for hiatal hernia is most analogous, in terms of symptoms and anatomical location, to the Veteran’s esophagitis for rating purposes.  This is based on the Veteran’s reported symptoms of epigastric distress with symptoms of pyrosis (heartburn), nausea, and infrequent vomiting; these symptoms mirror the rating criteria found under DC 7346.
Under DC 7346, a 10 rating is warranted if two or more of the symptoms for the 30 percent evaluation of less severity is shown.  A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent rating 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.
In evaluating the Veteran’s esophagitis, the Board may not deny entitlement to a higher rating due to relief provided by medication when those effects are not specifically contemplated by the rating criteria.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also 38 C.F.R. § 4.114, DC 7346 (containing no reference to the effects of medication).
As noted in the previous discussion, the October 2006 and May 2008 VA examiners noted a history of hiatal hernia with esophagitis, but did not find evidence of a hiatal hernia, esophagitis, or reflux on examination.  However, the Veteran reported that he experienced reflux and heartburn symptoms daily, with vomiting occurring during severe reflux episodes.
Subsequently, the February 2011, May 2014, and June 2018 VA examination reports indicated that the Veteran continued to have daily heartburn, burning epigastric pain, regurgitation of stomach, nausea, and vomiting.  Specifically, at the June 2018 examination, the examiner found that the Veteran suffered from GERD since the 1990s, with epigastric and lower retrosternal burning pain, acid reflux that rose up to the throat that awakens him at night, and resulted in occasional nausea and infrequent vomiting.  The June 2018 examiner noted infrequent episodes of epigastric pain, pyrosis, substernal pain, 4 or more episodes of nausea within a year that lasts less than a day, and 2 episodes of vomiting per year that lasts less than a day.
VA treatment records showed that the Veteran’s esophagitis symptoms were well-controlled with medication.
Given the above, the Board finds that the Veteran’s esophagitis symptoms most nearly approximated the current 10 percent rating, and a higher rating is not warranted.
A higher 30 percent rating requires GERD symptoms such as persistently recurrent epigastric distress with dysphagia (difficulty swallowing), heartburn, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.
Throughout the period on appeal, the Veteran’s esophagitis symptoms primarily manifested as infrequent episodes of epigastric distress with daily reflux, epigastric pain, occasional nausea, and infrequent vomiting.  These symptoms more nearly approximate the criteria for a 10 percent evaluation.  The examination reports have shown that the Veteran’s symptoms do not involve persistently recurrent epigastric distress with dysphagia (difficulty swallowing), heartburn, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.  
In sum, the preponderance of the evidence is against the assignment of a higher rating, and the benefit of the doubt rule does not apply.  Entitlement to a rating in excess of 10 percent for esophagitis and fatty liver with mild liver function test abnormalities, is not warranted.  See 38 U.S.C. § 5107; 38 C.F.R. §3.102; Gilbert, supra.  There are no additional expressly or reasonably raised issues presented on the record.

 
C. BOSELY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Tang, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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