Citation Nr: 1306142 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-08 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable disability rating (evaluation) for a hiatal hernia with gastroesophageal reflux (GERD). 2. Entitlement to an initial compensable disability rating for right knee degenerative joint disease prior to January 16, 2009 and in excess of 10 percent from January 16, 2009. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1984 to September 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The appeal was subsequently transferred to the RO in Philadelphia, Pennsylvania. In an April 2008 notice of disagreement, the Veteran expressed disagreement with the initial ratings assigned for bilateral hearing loss, a hiatal hernia with GERD, and right knee degenerative joint disease, and with the denial of service connection for a palmer flexion deformity of the right small finger and prostitis; however, in a March 2009 substantive appeal, the Veteran only appealed the initial ratings assigned for a hiatal hernia with GERD and right knee degenerative joint disease. Therefore, the remaining issues identified on the April 2008 notice of disagreement are not in appellate status, and are not before the Board. In a subsequent October 2012 rating decision, the RO granted a higher 10 percent evaluation for a hiatal hernia with GERD for the period from January 16, 2009, thus creating the staged rating for a compensable evaluation prior to January 16, 2009 and for a rating in excess of 10 percent from that date. The issue of entitlement to a higher initial disability rating for right knee degenerative joint disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire rating period, the Veteran's hiatal hernia with GERD has been manifested by recurrent epigastric distress or dyspepsia with symptoms of pyrosis (heartburn) and retrosternal pain. 2. The Veteran's hiatal hernia with GERD and is controlled with daily medication and does not more nearly approximate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, nor is it productive of considerable impairment of health. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire rating period, the criteria for a 10 percent evaluation for hiatal hernia with GERD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. In May 2007 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The notice included information regarding disability ratings and the assignment of an effective date. The Board finds that the May 2007 letter served its purpose in providing VCAA notice, and its application is no longer required because the original claim has been "substantiated." See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A February 2012 letter included information regarding disability ratings and the criteria applicable to the initial rating appeal. The Veteran's appeal for higher initial rating is a "downstream" question from the RO's initial grant of service connection and assignment of initial disability rating. For such downstream issues, VCAA notice is not required where such notice was afforded for the originating issue of service connection. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, the Veteran's statements, and VA examinations. During the relevant period on appeal, the Veteran was afforded VA examinations in June 2007, January 2009, and September 2012 to evaluate the service-connected hiatal hernia with GERD. The Board finds that, cumulatively, these examinations are adequate for rating purposes because they were performed by a medical professional, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. The examiners reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran has challenged the initial disability rating assigned to his service-connected hiatal hernia with GERD by seeking appellate review. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating); see also Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) (discussing aspects of a claim for increased disability rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Fenderson, 12 Vet. App. at 126. As the Board will discuss in more detail below, the Board finds that symptoms related to a hiatal hernia with GERD have not changed in severity over the course of the appeal to warrant a staged rating. The Schedule of Ratings of the Digestive System at 38 C.F.R. § 4.114 provides that ratings under Diagnostic Codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran is in receipt of a noncompensable initial evaluation for a hiatal hernia with GERD under Diagnostic Code 7399-7346. 38 C.F.R. §§ 4.20, 4.27 (2012) (when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition). Diagnostic Code 7346 (hiatal hernia) assigns a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity. A 30 percent rating for a hiatal hernia is assigned with 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 assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Initial Rating for a Hiatal Hernia with GERD After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, a hiatal hernia with GERD has been manifested by recurrent epigastric distress with symptoms of pyrosis (heartburn) and retrosternal pain; but does not more nearly approximate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, nor is it productive of considerable impairment of health. The Board finds that, for the entire rating period, the Veteran's disability more nearly approximates the criteria for an initial 10 percent disability rating under Diagnostic Code 7346. See 38 C.F.R. § 38 C.F.R. § 4.114. For the entire rating period, the Board finds that the Veteran has had recurrent epigastric distress or dyspepsia with symptoms of pyrosis and retrosternal pain. A June 2007 VA general medical examination shows that the Veteran reported symptoms of recurrent heartburn and his symptoms were controlled with Prilosec. The Veteran was diagnosed with GERD on medical therapy. During a June 2009 VA examination, the Veteran reported using a wedge to sleep on for control of reflux symptoms in addition to taking once-a-day Prilosec. The examiner noted the Veteran's report of having recurrent dyspepsia when he had to sneeze or had a significant increase in intrathoracic pressure. These episodes of dyspepsia were treated with Mylanta. Dyspepsia is defined as impairment of the power or function of digestion; usually applied to epigastric discomfort following meals. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 576 (30th ed. 2003). Thus, the Board finds that the Veteran's intermittent symptoms of dyspepsia are analogous to recurrent epigastric distress described under Diagnostic Code 7346. The Veteran denied having postprandial pain, but had symptoms of intermittent dyspepsia aggravated by lying in a supine position or with coughing. He denied having any problems with swallowing food or liquids, and denied weight loss, fever, or other conditions. In a March 2009 statement, the Veteran stated that he had symptoms of pain in the substernal region with sneezing, or sitting up rapidly, and that he had reported such during the January 2009 VA examination. He stated that this pain lasted for a few minutes and gradually dissipated. During a September 2012 VA examination, the Veteran reported having intermittent episodes of retrosternal discomfort, occurring approximately twice a month. He denied having symptoms of reflux. He reported that his discomfort was relieved by omeprazole, which the Veteran took intermittently. The examiner identified the Veteran as having symptoms of pyrosis due to the service-connected hiatal hernia with GERD, but did not indicate dysphagia, regurgitation, or substernal, arm, or shoulder pain. The Veteran is competent to report symptoms of substernal pain, present with sneezing, coughing, or sitting up, and his reports appear to be consistent with his report of having dyspepsia with sneezing or an increase in intrathoracic pressure, in a January 2009 VA examination. While the September 2012 VA examiner did not specifically identify the presence of substernal, arm, or shoulder pain during examination, he described the Veteran's report of retrosternal discomfort during examination. There is no indication that the Veteran's lay reports of retrosternal pain are not otherwise credible. See Buchanan Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Resolving reasonable doubt on this question, the Board finds that the Veteran has occasional symptoms of retrosternal pain accompanying dyspepsia. See 38 C.F.R. §§ 4.3, 4.7. For these reasons, the Board finds that the evidence, lay and medical, shows that the Veteran has recurrent epigastric distress characterized by symptoms of pyrosis and retrosternal pain. While the Veteran's symptoms were noted to be fairly controlled with daily medication, he still experienced occasional symptoms and he used Mylanta and omeprazole for treatment of these symptoms. Resolving reasonable doubt in the Veteran's favor, for the entire rating period, the Board finds that a 10 percent rating is warranted for a hiatal hernia with GERD under Diagnostic Code 7346. See 38 C.F.R. §§ 4.3, 4.7, 4.114. The Board finds that the criteria for next higher 30 percent rating under Diagnostic Code 7346 have not been met or more nearly approximated for any portion of the rating period. Manifestations of a hiatal hernia with GERD have not more nearly approximated persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation at any time during the rating period. See 38 C.F.R. § 4.114. The Veteran specifically denied having symptoms of dysphagia or difficulty swallowing during a January 2009 VA examination, and the September 2012 VA examination does not otherwise identify the presence of dysphagia or regurgitation. The evidence also does not show that a hiatal hernia with GERD is productive of considerable impairment of health, nor does the Veteran contend such. Instead, the Veteran's disability is shown to be fairly controlled with daily medication, as indicated in June 2007 and January 2009 VA examinations and in a June 2009 VA treatment report. For these reasons, the Board finds that, for the entire rating period, a higher 30 percent rating is not warranted for a hiatal hernia with GERD under Diagnostic Code 7346. See 38 C.F.R. § 4.114. The Schedule of Ratings of the Digestive System at 38 C.F.R. § 4.114 provides that ratings under the relevant Diagnostic Codes will not be combined with each other, and a single evaluation will be assigned based on the predominant disability picture. The Board finds that Diagnostic Code 7346 best represents the Veteran's predominant disability picture due to his hiatal hernia with GERD, based on the system or body parts involved, and his symptoms and presentation. Thus, the Board finds that consideration of ratings under alternate schedular rating criteria for the digestive system is not warranted in this case. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's hiatal hernia with GERD is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Code7346, specifically provide for disability ratings for a hiatal hernia based on symptoms which include epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain. See 38 C.F.R. § 38 C.F.R. § 4.114. The 10 percent rating under Diagnostic Code 7346 was granted based on recognition of the Veteran's symptomatic disability characterized by recurrent epigastric distress. In this case, considering the lay and medical evidence, the Veteran's hiatal hernia with GERD is manifested by epigastric distress or dyspepsia with pyrosis and occasional episodes of retrosternal or substernal pain. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the hiatal hernia with GERD, and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his occupation and daily life. In the absence of exceptional factors associated with the hiatal hernia and GERD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER For the entire rating period, a 10 percent initial disability rating for a hiatal hernia with GERD is granted. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was afforded VA examinations January 2009, and September 2012 to evaluate his service-connected right knee; however, only the September 2012 VA examination included range of motion testing for the right knee. Unfortunately, it appears that there was a reporting error in the range of motion measurements provided for the right knee. Under the Schedule of Ratings for the Musculoskeletal System, normal range of motion for the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II (2012). The September 2012 VA examiner reported that the Veteran had 140 degrees flexion in the right knee with no objective evidence of painful motion; however, after repetitive use testing, the checked to indicate 0 degrees of flexion. The Board finds that the 0 degree measurement, indicating that the Veteran was not able to flex his knee to any degree on repeat testing, is inconsistent with the earlier assessment of having normal flexion in the knee without pain. The examiner also reported that right knee extension was limited to 45 degrees; however, the Board finds that this is inconsistent with the measurement provided after repetitive use testing, which shows that the Veteran was able to extend his knee fully to 0 degrees. For these reasons, the Board finds that a remand is required for clarification of the range of motion measurements provided during the September 2012 VA examination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). If the VA examiner who conducted the September 2012 VA examination is no longer available or is not able to provide clarification with regard to the September 2012 range of motion measurements, the Veteran should be afforded a new VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the case to the VA examiner who conducted the September 2012 VA examination for clarification regarding the range of motion measurements provided for the right knee. Another examination is not required; however, if the VA examiner who conducted the September 2012 examination is no longer available, or is unable to provide clarification with regard to the September 2012 range of motion measurements without examining the Veteran, the Veteran should be afforded a new VA examination. The relevant documents in the claims folder should be made available for review in connection with this request. The VA examiner should provide an addendum opinion for clarification of the following range of motion measurements provided during the September 2012 VA examination: (a) Identify the endpoint for right knee flexion, in degrees, on initial range of motion testing. (The normal endpoint for knee flexion is 140 degrees.) (b) Identify the endpoint for right knee flexion, in degrees, after repetitive use-testing. (c) Identify the endpoint for right knee extension, in degrees, on initial range of motion testing. (The normal endpoint for knee extension is 0 degrees.) (d) Identify the endpoint for right knee extension, in degrees, after repetitive use-testing. 2. The RO/AMC should review the VA addendum opinion in conjunction with the September 2012 VA examination, or the new VA examination report, to ensure that reported range of motion measurements are adequate for rating purposes. If it is deficient in any manner, the RO/AMC should implement corrective procedures at once. 3. After all development has been completed, the RO/AMC should readjudicate the issue of entitlement to an initial compensable disability rating for right knee degenerative joint disease prior to January 16, 2009 and in excess of 10 percent from January 16, 2009. If the benefits sought remain denied, the Veteran should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter or 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 Supp. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs