WRIST IMPAIRMENT OF

Summary

The veteran, who served from March 1972 to August 1999, appeals the denial of an increased rating for a left wrist condition, GERD, and TDIU, as well as service connection for a left thumb condition and hemorrhoids secondary to GERD. The Board granted service connection for the left thumb condition, finding the April 2022 VA opinion probative due to documented in-service complaints and a positive nexus. Service connection for hemorrhoids secondary to GERD was also granted, based on the veteran's credible testimony about dietary challenges and constipation/diarrhea related to GERD, combined with instructive medical literature, despite inadequate VA opinions. The Board denied an increased rating for the left wrist condition, finding no evidence of ankylosis required for a higher rating, and affirmed the existing 10 percent rating. For GERD, the Board granted a 30 percent rating for the period prior to March 22, 2024, based on symptoms of persistently recurrent epigastric distress, pyrosis, and substernal pain, but denied a higher rating from March 22, 2024, as the criteria for severe impairment were not met. The TDIU claim was denied for the period prior to January 25, 2024, as the veteran's service-connected disabilities, despite causing some functional impairment, did not render him unable to secure or follow substantially gainful employment, considering his education, work history, and the probative medical opinions stating no impact on work ability.

Rationale

No evidence of ankylosis; Painful motion warrants 10% rating; No rating in excess of 10% warranted

Full Decision Text

Citation Nr: 26004771
Decision Date: 04/20/26	Archive Date: 04/20/26

DOCKET NO. 17-48 745
DATE: April 20, 2026

ORDER

Entitlement to a disability rating in excess of 10 percent for residual left wrist surgery with scar (left wrist condition) is denied.

Entitlement to a disability rating of 30 percent, but no higher, for gastroesophageal reflux disease with hiatal hernia (GERD), for the period from February 28, 2013, to March 22, 2024, is granted. 

Entitlement to a disability rating in excess of 60 percent for GERD from March 22, 2024, is denied.

Entitlement to service connection for arthritis left thumb (left thumb condition) is granted.

Entitlement to service connection for hemorrhoids, as secondary to GERD, is granted.

Entitlement to a total disability rating due to individual unemployability (TDIU) from September 1, 2013, and prior to January 25, 2024, is denied.

FINDINGS OF FACT

1. The Veteran's residual left wrist surgery with scar (left wrist condition) manifests with painful motion and limitation of range of motion but does not manifest with ankylosis.

2. For the period prior to March 22, 2024, the Veteran's GERD manifested with symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis (heartburn), and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.

3. For the period beginning on March 22, 2024, the Veteran's GERD manifested with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; but not a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube) or as a stricture permitting passage of liquids only with marked impairment of general health.

4. The Veteran's arthritis left thumb (left thumb condition) was incurred in or caused by service.

5. The Veteran's hemorrhoids are proximately due to, or the result of his service-connected GERD.

6. For the period on appeal, the Veteran is not precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 10 percent for residual left wrist surgery with scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215-5003.

2. The criteria for entitlement to a disability rating of 30 percent, but no higher, for the period from February 28, 2013, to March 22, 2024, for GERD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7399-7346, 7206.

3. The criteria for entitlement to a disability rating in excess of 60 percent for the period from March 22, 2024, for GERD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7399-7346, 7206.

4. The criteria for entitlement to service connection for arthritis left thumb (left thumb condition) have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.
1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7399-7346, 7206.

4. The criteria for entitlement to service connection for arthritis left thumb (left thumb condition) have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 

5. The criteria for entitlement to service connection for hemorrhoids have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.110.

6. The criteria for entitlement to TDIU have not been met. 38 C.F.R. §§?3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from March 1972 to August 1999.

This Legacy appeal has a lengthy history. It comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

In January 2022, the Board remanded the currently appealed claims to the RO for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11?Vet. App.?268 (1998); see also Dyment v. West, 13?Vet. App.?141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1.??

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38?C.F.R. § 4.3.???

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7?Vet. App.?55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21?Vet. App.?505, 509-10 (2007).???

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6?Vet. App.?259, 262 (1994); 38 C.F.R. §4.14. The

Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. §3.159(a).??

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or the evidence is persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

1. Entitlement to a disability rating in excess of 10 percent for residual left wrist surgery with scar (left wrist condition)

The Veteran's residual left wrist surgery with scar is evaluated under Diagnostic Code 5215-
1372, 1377 (Fed. Cir. 2007); 38 C.F.R. §3.159(a).??

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or the evidence is persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

1. Entitlement to a disability rating in excess of 10 percent for residual left wrist surgery with scar (left wrist condition)

The Veteran's residual left wrist surgery with scar is evaluated under Diagnostic Code 5215-5003 with a 10 percent rating. The Veteran filed his claim for an increased rating on February 28, 2013. As such, the period on appeal begins on February 28, 2013. 38 C.F.R. § 3.400.

The Veteran's wrist disability is rated under hyphenated Diagnostic Code 5215-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27.

DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. In the absence of limitation of motion, DC 5003 provides for a 10 percent rating with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under DC 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. In Notes (1) and (2) in DC 5003, it is indicated these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003.

In application of DC 5003, "painful motion of a major joint... caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Diagnostic Code 5215 sets forth the criteria for limitation of motion of the wrist. Under Diagnostic Code 5215, a maximum 10 percent evaluation is warranted for either the major or minor extremity if dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215. In order to warrant a rating in excess of 10 percent, ankylosis of the wrist must be shown. Specifically, Diagnostic Code 5214 provides that where there is ankylosis of the wrist that is favorable in 20 degrees to 30 degrees of dorsiflexion, a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist in any other position, except favorable, a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity is warranted. Where there is ankylosis of the wrist that is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation, a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity is warranted.

Factual Background

The Veteran was provided VA examinations in January 2014 and April 2022 to assess the nature and severity of his left wrist disability. 

In the January 2014 VA examination, the Veteran reported limited range of motion and painful motion when moving his wrist downward with pain extending to the first joint of his thumb. The Veteran reported flare-ups where the wrist sometimes locks up and has very limited use of his left hand. The examiner noted left wrist palmer flexion at 60 degrees with painful motion at 50
, in any degree of palmar flexion, or with ulnar or radial deviation, a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity is warranted.

Factual Background

The Veteran was provided VA examinations in January 2014 and April 2022 to assess the nature and severity of his left wrist disability. 

In the January 2014 VA examination, the Veteran reported limited range of motion and painful motion when moving his wrist downward with pain extending to the first joint of his thumb. The Veteran reported flare-ups where the wrist sometimes locks up and has very limited use of his left hand. The examiner noted left wrist palmer flexion at 60 degrees with painful motion at 50 degrees and left wrist dorsiflexion at 55 degrees with painful motion at 45 degrees. The Veteran was able to perform repetitive use testing with left wrist palmar flexion at 60 degrees and dorsiflexion at 55 degrees. No functional loss of the left upper extremity was noted. However, less movement than normal was noted for the left wrist along with excess fatigability, and pain on movement. The left wrist also exhibited localized tenderness or pain on palpation. Muscle strength testing showing a rating of 4 out of 5 in left wrist flexion and extension. The examiner indicated that the Veteran does not have ankylosis of either wrist joint. Diagnostic testing showed degenerative or traumatic arthritis of the left wrist. As to functional impact, the examiner stated that the impact of the wrist condition on the Veteran's ability to work is very limited function of the hand with limited strength. Moreover, the examiner stated that the Veteran cannot lift and can do very little work with his left hand as his strength is about 10. 

In the April 2022 VA examination, the Veteran complained of intermittent pain and weakness in the wrists with use. During this examination, the Veteran reported no flare-ups of the wrist or having any functional loss or functional impairment of the joint being evaluated, including but not limited to after repeated use over time. Range of Motion (ROM) for the left wrist was noted as 60 degrees of dorsiflexion and 70 degrees of palmar flexion. The abnormal ROM by itself was noted as not contributing to functional loss. Pain was noted on active motion but the pain does not result in/cause functional loss. The Veteran was able to perform repetive use testing with at least three repetitions with no additional loss of function or range of motion after the repetitions. The Veteran was not examiner after repeated use over time. However, the examiner noted that procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which would significantly limit functional ability with repeated use over time. No muscle atrophy was noted. No ankylosis was noted. As to functional impact, the examiner noted the wrist condition had no impact on his ability to perform any type of occupational task. 

Analysis

Based on the foregoing, the Board finds that the Veteran's left wrist disability most closely approximates the 10 rating criteria beginning on February 28, 2013, based on painful motion. From the medical evidence of record, it is reasonable to conclude that limitation at this level was present for the entire appeal period. 

However, a rating in excess of 10 percent is not warranted. A rating higher than 10 is only warranted when ankylosis of the wrist is shown. Here, there is no evidence that the Veteran has ankylosis.  

In sum, the Board finds that a disability rating of 10, but no higher, for the left wrist condition for the entire appeal period is warranted. 

2. Entitlement to an increased disability rating for GERD

The Veteran filed his claim for an increased rating on February 28, 2013. As such, the period on appeal begins on February 28, 2013. 38 C.F.R. § 3.400.

The Veteran's GERD is evaluated under Diagnostic Code (DC) 7399-7346 with a 10 percent rating from February 28, 2013, to March 22, 2024, and a 60 percent rating from March 22, 2024. Furthermore, the Board notes that the Veteran is separately rated for his esophageal stricture and esophageal spasm under Diagnostic Code 7203 with a 50 percent rating, effective February 28, 2013. 

During the pendency of the appeal, VA published amendments to 38 C.F.R. § 4.114, the Schedule of Ratings for the Digestive System, effective May 19, 2024. In cases where rating criteria are amended during the appeal, the Board must consider both the former and current schedular criteria and apply the criteria that is most favorable to the Veteran
3, to March 22, 2024, and a 60 percent rating from March 22, 2024. Furthermore, the Board notes that the Veteran is separately rated for his esophageal stricture and esophageal spasm under Diagnostic Code 7203 with a 50 percent rating, effective February 28, 2013. 

During the pendency of the appeal, VA published amendments to 38 C.F.R. § 4.114, the Schedule of Ratings for the Digestive System, effective May 19, 2024. In cases where rating criteria are amended during the appeal, the Board must consider both the former and current schedular criteria and apply the criteria that is most favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. Under the prior rating criteria, GERD was rated analogous to hiatal hernia under Diagnostic Code 7346. Diagnostic Code 7346 provides a 10 percent rating for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis (heartburn), and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114. A 60 percent rating is assigned 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. Id. 

Under the new rating criteria, a new Diagnostic Code (7206) was added for GERD. Under this Diagnostic Code, a noncompensable evaluation is warranted for documented history without daily symptoms or requirement for daily medications. A 10 percent rating is assigned for documented history of esophageal stricture(s) that requires daily medications to control dysphagia otherwise asymptomatic. A 30 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year. A 50 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following (1) dilatation 3 or more times per year, (2) dilatation using steroids at least one time per year, or (3) esophageal stent placement. A maximum 80 percent rating is assigned for documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube). The notes for Diagnostic Code 7206 advise that findings must be documented by barium swallow, computerized tomography or esophagogastroduodenoscopy. Non-gastrointestinal complications of procedures should be rated under the appropriate system. This diagnostic code applies, but is not limited to, esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding at junction of esophagus and stomach due to tears) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. Recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved. Refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals.

Factual Background

The Veteran was provided VA examinations in January 201
 or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic, or lymphocytic esophagitis; esophagitis due to radiation therapy; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. Recurrent esophageal stricture is defined as the inability to maintain target esophageal diameter beyond 4 weeks after the target diameter has been achieved. Refractory esophageal stricture is defined as the inability to achieve target esophageal diameter despite receiving no fewer than 5 dilatation sessions performed at 2-week intervals.

Factual Background

The Veteran was provided VA examinations in January 2014, April 2022, and March 2024 to assess the nature and severity of his GERD disability. 

In the January 2014 VA examination, the examiner noted an established diagnosis of GERD. The Veteran reported symptoms of the condition which included regurgitation, chest pain, burning sensation, and abdominal pain. The examiner noted persistently recurring epigastric distress and esophageal stricture deemed moderate requiring dilation every 6 months. 

In the April 2022 VA examination, the examiner noted a change in the Veteran's diagnosis from GERD to a diagnosis of stricture of the esophagus, which the examiner noted is a progression of the service-connected GERD condition. Symptoms noted at the examination included persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. The examiner noted the Veteran has an esophageal stricture, spasm of esophagus amenable to dilation. An upper endoscopy was noted as occurring in 2012 which revealed stricture at the GE junction, esophagitis, erythema of the whole stomach, gastritis, and hiatal hernia. Additionally, the examiner noted no functional impact on ability to work. 

In the March 2024 VA examination, the examiner noted diagnoses of GERD and esophageal stricture and esophageal spasm. Due to receiving chemotherapy, certain medications for the esophageal conditions had been modified or stopped. Symptoms noted at the examination included reflux, regurgitation, pain in shoulder, material weight loss from 213 pounds to 196 pounds, nausea 4 or more times per year lasting less than 1 day, vomiting less than 1 day, hematemesis 4 or more per year lasting less than 1 day. The examiner also noted that the Veteran has an esophageal stricture, spasm of the esophagus amenable to dilation, which is evaluated every 6 months, noted as moderate with the ability to still have solids in his diet. No new diagnostic testing, not already part of the record, was noted. Functional impact on ability to work was noted as dysphagia with significant reflux and regurgitation of food is discomforting and effecting his quality of life, that the Veteran is on surveillance every three months for GI series secondary to esophageal stricture. However, the examiner clarified later that the Veteran's esophageal condition does not put him at any additional disadvantage or limitations from work. Furthermore, the Veteran reported experiencing extreme fatigue since starting chemotherapy in January and should avoid jobs that require extreme physical exertion. 

Analysis

Based on the foregoing, the Board finds that a 30 percent rating for GERD, but no higher, for the period from February 28, 2013, through March 22, 2024, is warranted. For the period from March 22, 2024, the Veteran's GERD disability more closely approximated the 60 percent rating criteria, but no higher, under DC 7399-7346.

Under DC 7399-7346, a 60 percent rating is assigned 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. Here, symptoms of pain, vomiting, material weight loss, hematemesis, and nausea were not documented until the March 2024 VA examination. 

Under DC 7306 after May 19, 2024, a higher rating of 80 percent is only warranted when there is a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube). Here, the medical evidence shows esophageal stricture causing dysphagia but without noted aspiration, undernutrition, and/or substantial weight loss and no treatment
 not documented until the March 2024 VA examination. 

Under DC 7306 after May 19, 2024, a higher rating of 80 percent is only warranted when there is a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia with at least one of the symptoms present: (1) aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and treatment with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube). Here, the medical evidence shows esophageal stricture causing dysphagia but without noted aspiration, undernutrition, and/or substantial weight loss and no treatment with either surgical correction or PEG tube. 

In sum, the Board finds that a 30 percent disability rating for GERD, but no higher, for the period from February 28, 2013, to March 22, 2024, is warranted, and a disability rating of 60 percent, but no higher, for the period from March 22, 2024, is warranted. 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 

To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in a denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Service?connection?may alternatively be?established?on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be?established?for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree)?over and above the degree of disability existing prior to the aggravation.?See?38?C.F.R. § 3.310(b);?Allen v. Brown, 8?Vet. App.?374 (1995).?????? 

In order to?prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence?establishing?a connection between the service-connected disability and the current disability.?See Wallin v. West, 11?Vet. App.?509, 512 (1998);?see also?Allen,?supra.?????? 

Service connection must be considered on the basis of the places, types, and circumstances of a Veteran's service as shown by his or her service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a
 the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to service connection for a left thumb condition

4. Entitlement to service connection for hemorrhoids, as secondary to GERD 

The Veteran seeks service connection for a left thumb condition and for hemorrhoids. 

As to a current disability, the RO noted in the July 2014 rating decision that the Veteran has a diagnosis of rheumatoid arthritis in bilateral hands and fingers and a diagnosis of grade 1 internal and external hemorrhoids. Based on the RO's confirmation of these diagnoses, the Board finds that the current disability element is established.  

As to in-service incurrence, the April 2022 VA examiner noted that the Veteran made complaints related to his left thumb during service, which the examiner stated was documented in the service treatment records (STRs). As such, the Board finds that the in-service incurrence element for the left thumb condition is established. 

As to evidence of a service-connected condition, the Veteran is service connected for GERD. Thus, the second element of secondary service connection for his hemorrhoids is satisfied. 

Regarding a nexus between service and the left thumb condition, the Veteran was afforded a VA examination in April 2014 and April 2022, and VA opinions for the left thumb condition were obtained in April 2014 and April 2022. 

In the April 2014 VA opinion, the examined opined that the Veteran's left thumb condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner found no current diagnosis of a left thumb condition. However, the examiner did note an acute and transitory event in service. Since the Veteran has since received a diagnosis pertaining to his left thumb condition, the April 2014 VA opinion now rests on an inaccurate factual premise which renders it inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value). As such, the Board affords the April 2014 VA opinion no probative weight.   

In the April 2022 VA opinion, the examiner opined that the Veteran's left thumb condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for the positive nexus, the examiner stated that left thumb complaints in service were documented in STRs. The conclusion is supported by adequate rationale, and the Board finds the April 2022 opinion highly probative. 

As the most probative evidence is in favor of the claim, the Board finds that a nexus is established between the Veteran's left thumb condition and his service. 

Regarding a nexus between the Veteran's hemorrhoids and his service-connected GERD, the Veteran was afforded a VA examination for his hemorrhoids in June 2017. A VA opinion for secondary service connection was obtained in June 2017. The examiner opined that the Veteran's hemorrhoids were less likely than not proximately due to or the result of the Veteran's service-connected GERD condition. As rationale, the examiner stated that hemorrhoids can be caused by a number of things all involving increased pressure or strain on the rectal area. Common causes outlined included straining with bowel movements due to constipation, hard stools, severe coughing, heavy lifting, and sitting for long periods of time, especially on the toilet. However, the examiner did not address whether the Veteran experienced any of those symptoms in relation to his GERD condition. Thus, the Board is not able to make a fully informed decision from this opinion. As such, the Board affords the June 2017 VA opinion little probative weight. However, the Board finds the opinion instructive as to causes for hemorrhoids. 

The Veteran was afforded a VA examination for his hemorrhoids in April 2022. A VA opinion was obtained in April 2022. The examiner opined that the Veteran's hemorrhoids were
 outlined included straining with bowel movements due to constipation, hard stools, severe coughing, heavy lifting, and sitting for long periods of time, especially on the toilet. However, the examiner did not address whether the Veteran experienced any of those symptoms in relation to his GERD condition. Thus, the Board is not able to make a fully informed decision from this opinion. As such, the Board affords the June 2017 VA opinion little probative weight. However, the Board finds the opinion instructive as to causes for hemorrhoids. 

The Veteran was afforded a VA examination for his hemorrhoids in April 2022. A VA opinion was obtained in April 2022. The examiner opined that the Veteran's hemorrhoids were not incurred in or caused by service nor were they proximately due to or the result of service-connected conditions. As rationale, the examiner solely relied on lack of treatment in service and provided no rationale as to secondary service connection. Reliance on the absence of treatment records is not the correct standard. It is symptoms, not treatment, that are relevant. See Savage v. Gober, 10 Vet. App. 488, 496 (1997) ("symptoms, not treatment, are the essence of any evidence of continuity of symptom[s]."). Furthermore, the conclusion regarding secondary service connection lacks any rationale. For these reasons, the Board finds the April 2022 VA opinion inadequate and affords it no probative weight. 

A second VA opinion for secondary service connection was obtained in April 2022 which also provided a negative nexus for hemorrhoids as secondary to GERD. As rationale, the examiner noted that medical literature does not support the connection between the two conditions. However, the examiner did not address the Veteran's lay statements regarding his bouts of constipation and diarrhea from his digestive issues he related to his GERD condition. The failure to address pertinent and relevant lay evidence renders the rationale incomplete and the opinion inadequate. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board affords the second April 2022 VA opinion no probative weight. 

The Veteran credibly testified at the August 2021 Board hearing that as a result of his GERD condition, he experienced not being able to eat normally with his digestive issues, especially with difficulty in getting enough fiber in his diet. As a result, the Veteran reported experiencing constipation and diarrhea. The Board notes that the Veteran is competent to report his ability or inability to eat a normal diet, and his reports of eating a modified diet due to esophageal stricture are consistent with the medical evidence of record. As such, the Board finds the Veteran's statements highly probative. 

Given that there is no adequate VA opinion for secondary service connection, and based on the highly instructive causes for listed for hemorrhoids in the June 2017 VA opinion when coupled with the Veteran's highly probative statements regarding challenges with his diet and credible reports of constipation and diarrhea, the Board finds that a nexus is established between the hemorrhoid condition and GERD. 

Accordingly, entitlement to service connection for the Veteran's left thumb condition and the Veteran's hemorrhoids as secondary to his service-connected GERD is granted. 

TDIU

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §1555; 38 C.F.R. §§3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38C.F.R. §4.16(a), provide for a T
 arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38C.F.R. §4.16(a), provide for a TDIU when, due to a service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38C.F.R. §4.16(b).

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §4.16.

Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id.

In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.

5. Entitlement to TDIU

The Veteran submitted a VA Form 21-8940: Application for Increased Compensation Based on Unemployability on May 3, 2022. As a threshold matter, the Board notes that as of January 25, 2024, the Veteran was rated as 100 percent disabled and is in receipt of Special Monthly Compensation (SMC) benefits under 38 U.S.C. § 1114(s). As such, TDIU is moot for this period. 

Addressing the period prior to January 25, 2024, the Board notes that the Veteran filed his claim for benefits for GERD, on February 28, 2013, and his application for TDIU asserts that he became too disabled to work on September 1, 2013. Because the Court has held that TDIU can be part and parcel of an increased rating claim, the Board finds that the appeal period for TDIU begins on September 1, 2013, when the Veteran asserts that he stopped working due to his now service connected conditions. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) ("[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for
 2013, and his application for TDIU asserts that he became too disabled to work on September 1, 2013. Because the Court has held that TDIU can be part and parcel of an increased rating claim, the Board finds that the appeal period for TDIU begins on September 1, 2013, when the Veteran asserts that he stopped working due to his now service connected conditions. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) ("[w]hen entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability.").

The Veteran is currently service connected for coronary artery disease (CAD), GERD, esophageal stricture and spasm, sleep apnea, left knee osteoarthritis, right knee osteoarthritis, right wrist strain, residuals of left wrist surgery, left ankle achilles tendonitis and sprain, tinnitus, bilateral hearing loss, enlarged prostate, residuals status post left ring finger injury, fractured rib on left side, right hamstring sprain, hypertension, and linear scar of the left wrist. 

As of February 28, 2013, the Board finds the Veteran had at least one disability rated at 50 percent with additional disabilities to bring the combined evaluation to 80 percent. See May 2025 Rating Decision - Codesheet. Thus, the Veteran has met the schedular requirements for TDIU for the entire appeal period from September 1, 2013. The remaining question is whether or not the Veteran is unable to secure or follow a substantially gainful occupation during this period. 

As noted, the Veteran reported that he has not worked since 2012 and that he became too disabled to work in September 2013. 

Concerning the Veteran's educational and vocational history, the Veteran holds a master's degree and had considered becoming a substitute teacher during the Covid-19 pandemic. After the Veteran's service, the Veteran was employed as a federal civil service employee for 10 years as a public affairs officer. The Veteran reported using all the sick leave he could accrue yearly for his medical issues. The Veteran has not worked since and has not sought out new employment. 

At the August 2021 Board hearing, the Veteran testified that he would not feel comfortable trying to hold down a job due to his service-connected disabilities, specifically mentioning, included but not limited to GERD, his heart condition, and his arthritis.  

Of the VA examinations of record for the period on appeal for the TDIU claim, none have stated that the Veteran is unable to work due to his service-connected disabilities although some have expressed some level of functional impairment. 

In the April 2022 VA examination for GERD, the examiner noted that the Veteran's GERD has no impact on his ability to work, which the Board finds probative. 

In the April 2022 VA examination for the hand and fingers, the examiner noted that the Veteran's left hand condition had no impact on his ability to work, which the Board finds probative.

In the April 2022 VA examination for bilateral wrist conditions, the examiner noted that the Veteran's bilateral wrist condition had no impact on his ability to work, which the Board finds probative.

In the May 2024 VA examination for heart conditions, the examiner noted that the Veteran's heart condition could interfere with walking, running, or standing, and can interfere with work functioning and productivity. However, the examiner stated that the Veteran may benefit from a desk job, one that requires less physical exertion, which the Board finds probative.

In addition to VA examination, the Veteran's private heart doctor noted no limitations after the Veteran's surgical procedure for his heart condition and that he is able to do as he pleases and denies any limitations, which the Board finds probative. See July 2022 Medical Treatment Record - Non-Government Facility. 

The Board has also considered the Veteran's statements regarding his feelings about his ability or inability to work, which the Board finds probative. 

However, the Board finds that the reports regarding functional impact are more persuasive as the cumulative effect of those numerous medical opinions largely outweigh the Veteran's statements, and the Board finds the medical evidence highly probative. 

Accordingly, the Board has considered the Veteran's functional capacity, educational history, and work experience in determining that his prior work as a public affairs officer is not precluded by his service-connected conditions. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Accordingly, based on the most probative evidence of record, the Board finds that the effects
 Board finds probative. 

However, the Board finds that the reports regarding functional impact are more persuasive as the cumulative effect of those numerous medical opinions largely outweigh the Veteran's statements, and the Board finds the medical evidence highly probative. 

Accordingly, the Board has considered the Veteran's functional capacity, educational history, and work experience in determining that his prior work as a public affairs officer is not precluded by his service-connected conditions. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Accordingly, based on the most probative evidence of record, the Board finds that the effects of Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation during the period on appeal. 

Thus, entitlement to a TDIU is not warranted during this period.

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jeffreys, J.

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.