Citation Nr: 1325657 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-00 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for Crohn's disease. 2. Entitlement to service connection for a right knee disability, to include as secondary to Crohn's disease. 3. Entitlement to service connection for a left knee disability, to include as secondary to Crohn's disease. 4. Entitlement to service connection for a back disability, to include as secondary to Crohn's disease and/or bilateral knee disabilities. 5. Entitlement to service connection for a hiatal hernia, to include as secondary to gastroesophageal reflux disease (GERD). 6. Entitlement to an initial disability rating in excess of 30 percent for depression. 7. Entitlement to an initial disability rating in excess of 30 percent for GERD. 8. Entitlement to a total disability rating based upon individual unemployability (TDIU). 9. Entitlement to a temporary total disability rating for convalescence following a 2005 surgery. 10. Whether disbursement of attorney fees in the amount of $1754.40 to David L. Huffman was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2007, October 2007, March 2009, November 2009, and September 2011, and October 2011 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran's service connection claims for back and bilateral knee disabilities were originally denied in an October 2005 rating decision. The Veteran did not appeal the denial, and filed another claim for service connection for the back and knee disabilities in May 2006. Since that time, copies of the Veteran's service treatment records that were not previously of record were received. As such, the Veteran's bilateral knee and back disability claims will be considered on the merits and not as claims to reopen. See 38 C.F.R. § 3.156(c)(1) (2012). The September 2007 rating decision denied service connection for the claimed bilateral knee and back disabilities. The October 2007 rating decision awarded service connection for GERD and assigned a 10 percent rating, effective February 2005. Following the appeal, the RO increased this rating to 30 percent, effective February 2005. Service connection for Crohn's disease, hiatal hernia, TDIU, and temporary total evaluation were denied in a March 2009 rating decision. Service connection for depression was granted in a November 2009 rating decision and a 30 percent rating was assigned, effective July 13, 2009. The Veteran appealed both the rating assigned and the effective date. In a September 2011 rating decision, the effective date was changed to October 2007. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his depression and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an October 2011 RO administrative decision, it awarded and disbursed the contested attorney fees to Mr. Huffman. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2013. A transcript of the hearing is associated with the claims file. The issues of entitlement to service connection for a hiatal hernia, an increased rating for depression, entitlement to a temporary total disability rating for convalescence, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's Crohn's disease and service. 2. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's right knee disability and service. 3. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's left knee disability and service. 4. The evidence of record is in equipoise as to whether a relationship exists between the Veteran's back disability and his bilateral knee disabilities 5. Manifestations of the Veteran's GERD during the timeframe on appeal, included complaints of dysphagia, odynophagia, heartburn, epigastric pain, rawness in his gums, hematemesis, melena, reflux/regurgitation, nausea, and vomiting, but with no indication of severe impairment of health. 6. The evidence of record does not show that the Veteran's GERD is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 7. In October 2007, the Veteran and Attorney Huffman entered into a valid power of attorney and contingency fee agreement that specifically indicated that the attorney would be entitled to 20 percent of any past-due benefits paid to the Veteran. 8. In a November 2009 rating decision, service connection was granted for depression, and a July 2009 effective date was given. The Veteran's attorney filed a Notice of Disagreement in January 2010 as to the effective date assigned and percentage assigned for the Veteran depression. 9. In August 2011, the Veteran withdrew his power of attorney from Attorney Huffman, but the attorney fee contract was never revoked. 10. In a September 2011 rating decision, an earlier effective date was awarded. 11. In an October 2011 RO administrative decision, Attorney Huffman was awarded $1754.40 in attorney fees. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, his Crohn's disease was caused or aggravated by his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Resolving all doubt in the Veteran's favor, his right knee disability was caused or aggravated by his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. Resolving all doubt in the Veteran's favor, his left knee disability was caused or aggravated by his military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. Resolving all doubt in the Veteran's favor, his back was caused or aggravated by his bilateral knee disabilities. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 5. The criteria for an initial disability rating in excess of 30 percent for GERD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.114 Diagnostic Code 7346 (2012). 6. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). 7. The award of $1754.40 in attorney fees to Attorney Huffman was proper. 38 U.S.C.A. §§ 5903, 5904 (West 2002); 38 C.F.R. §§ 14.627, 14.636 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2006, January 2007, and June 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the Veteran's claim for higher initial rating for his GERD, the Board notes that in cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess; see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection for GERD, has already been granted, VA's VCAA notice obligations with respect to that issue are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements]. Regarding the attorney fees dispute, the Board notes that it is not a "claim" for benefits under Chapter 31 of Title 38 of the United States Code. As such, VA's duties to notify and assist do not apply. See Sims v. Nicholson, 19 Vet. App. 453, 456 (2006). Regardless, the Board notes that the Veteran has been afforded an opportunity to meaningfully participate in his claim. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here the VLJ generally discussed the claims on appeal and asked questions to help the Veteran substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been represented by an experienced national service organization and has submitted argument in support of his claims. These arguments have generally referenced the applicable law and regulations necessary for a grant of service connection and increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records (STRs) and VA medical records are in the file. Records from the Social Security Administration (SSA) also have been associated with the claims file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claims. With respect to the increased rating claim, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examination most recently in January 2012. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the January 2012 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As discussed below, the Board finds that the Veteran is entitled to service connection for Crohn's disease, his bilateral knee disabilities, and low back disability. As such, the adequacy of the VA examinations performed for these disabilities will be discussed below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Claims for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all 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 also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Analysis The Veteran seeks service connection for Crohn's disease, bilateral knee disabilities, and low back disability. He contends his bilateral knee disabilities are directly related to service or secondary to his Crohn's disease, and his back disability is either secondary to his Crohn's or bilateral knee disabilities. The Veteran maintains that these disabilities had their onset during military service and have continued since. A review of the available STRs shows that the Veteran was noted upon induction to have a history of lumbar strain. The Veteran reported that he has continued back pain. Musculoskeletal and gastrointestinal examination in May 1969 showed no current stomach, back, or bilateral knee disabilities. A STR dated in August 1970 noted the Veteran's complaints of indigestion developing over the past few months, with burning in the stomach and periodic loose stools. Physical examination of the abdomen was within normal limits, and the impression was gastritis. In November 1970, the Veteran complained of pain the legs and knees over the past two to three months, with gradual worsening. Examination of the legs was within normal limits, and the treating professional diagnosed the Veteran as having chronic knee and leg pain of undetermined etiology. X-ray of the knees in December 1970 showed no evidence of joint or bone pathology. There was also a notation of myalgias. Discharge physical examination in January 1971 was negative for any back, bilateral knee, or gastrointestinal disability. The evidence of record shows that the Veteran was diagnosed as having irritable bowel syndrome (IBS), peptic ulcer disease, and a hiatal hernia in 1981. During this treatment, the Veteran reporting experiencing diarrhea alternating with constipation and cramps in the lower abdomen. There are also references to surgery for a left knee cyst in 1980. In the late-1990s, the Veteran sought treatment for increasing back pain. Noted at that time was a history of degenerative disc disease of the lumbar spine. It appears that the Veteran again sought treatment for his gastrointestinal complaints in the mid-2000s, at which time he was diagnosed as having Crohn's disease/colitis. The Veteran was afforded a VA joints examination in June 2007, during which the examiner diagnosed the Veteran as having patellofemoral pain syndrome of the bilateral knees with some limitation of motion. Following review of the claims file and examination and interview of the Veteran, the examiner opined that the Veteran's current bilateral knee complaints are less likely than not related to his military service. In reaching this conclusion, the examiner stated that the Veteran did not have any "significant knee problems" in service, nor did have any significant problems in his knees soon after discharge from service. In October 2007, the Veteran's private orthopedist reviewed the Veteran's claims file and history and noted that the Veteran's knee complaints/pain date back to his time in the military. He opined that it was at least as likely as not that the Veteran's bilateral knee disability is related to his military service. In reaching this conclusion, the orthopedist indicated that there is a relationship between the Veteran's ongoing complaints of bilateral knee pain, and his current symptoms. In an April 2008 statement from the Veteran's sister, she noticed a decline in the Veteran's overall physical and mental health upon return from active duty overseas. She specifically indicated that the Veteran had back and leg complaints that were not present before his active duty. In a December 2010 note, the Veteran's treating physician's assistant opined that the Veteran's current back problems are at least as likely as not related to his altered gait from his bilateral knee problems. In a March 2011 letter from the Veteran's treating physician (for digestive health), he opined that the Veteran's current inflammatory bowel disease had its onset during service. In so concluding, the physician indicated that the Veteran's 1970 treatment for loose stools and arthritic complaints are generally associated symptoms of inflammatory bowel disease. As such, he opined that it is at least as likely as not that the Veteran was suffering from an inflammatory bowel disease episode in 1970. The Veteran was afforded a VA examination again in March 2011. This examiner opined that the Veteran's Crohn's disease is not caused or aggravated by his service-connected GERD. The examiner indicated that GERD is not known to cause Crohn's disease. In December 2011, the Veteran submitted a letter from his treating rheumatologist, who indicated that he has been treating the Veteran for Crohn's-related arthritis. The rheumatologist indicated that the Veteran's arthralgias of the knee began during service. The Veteran presented his rheumatologist with copies of his STRs. Following review of the STRs, and examination and interview of the Veteran, the private rheumatologist opined that the Veteran's Crohn's and bilateral knee disabilities originated during service, and his low back pain is secondary to his Crohn's disease. In so concluding, the rheumatologist indicated that the Veteran's in-service complaint of loose stool was likely an early symptom of his Crohn's/colitis, and as such the Crohn's as well as his current arthritis are more likely than not related to service. The Veteran was afforded a VA examination regarding his Crohn's in January 2012, at which time the VA examiner concluded that the Veteran's Crohn's is less likely than not due to his military service. In reaching this conclusion, the examiner pointed to the Veteran's in-service treatment for loose stools, but found it important that the Veteran was not diagnosed as having inflammatory bowel disease at that time. Additionally, he noted that the Veteran was not shown to have Crohn's until 2006, and there were no records showing ongoing gastrointestinal complaints prior to 2005. As such, the examiner provided her negative nexus opinion. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed bilateral knee disabilities, low back disability, and Crohn's disease had their onset during military service or secondary to a service-connected disability. The Board notes that under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, there are competent, persuasive and probative opinions for and against the claims. Indeed, the Veteran complained of bilateral knee and gastrointestinal problems during service, and has competently reported problems with the same since. Moreover, there is a clear opinion from one of the Veteran's treating professionals linking his low back disability to the altered gait caused by his bilateral knee disability. The opinions both for and against the claim are based upon review of the pertinent medical evidence, and interview and examination of the Veteran. These opinions also include detailed rationales for the conclusions reached. As such, the Board finds all reasonable doubt in the Veteran's favor and service connection is awarded for his bilateral knee disabilities, low back disability, and Crohn's disease. The benefits sought on appeal are granted. Claim for Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's GERD is rated under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). In order for a 10 percent rating to be assigned, there must be evidence of two or more of the following: recurrent epigastric distress, dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain. For a 30 percent rating to be assigned, there must also be evidence of persistently recurrent epigastric distress productive of considerable impairment of health. For a 60 percent rating, the Veteran's symptoms must include pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Analysis The Veteran contends that his GERD warrants a rating in excess of 30 percent. By way of background, service connection for GERD was originally granted in an October 2007 rating decision. At that time a 10 percent was awarded, effective February 2005. The Veteran appealed the rating assigned and in a November 2008 rating decision, his rating was increased to 30 percent, effective February 2005. The Board notes that the Veteran has been separately awarded service connection for scars following his surgeries for his service-connected GERD. This was a separately claimed issue. The Veteran has at no time indicated that he wished to appeal these separate ratings nor has he contended any worsening of his scars. As such, the Board will limit its discussion to the GERD symptoms themselves. At the time the Veteran filed for service connection for his GERD, he was undergoing private treatment for complaints of significant reflux symptoms and epigastric pain. He also reported water brash symptoms and wakes up at night coughing. Private treatment records also show complaints of nausea, dysphagia, and black stool. The Veteran underwent a Nissen fundoplication in 2005. At the time it was supposed to be performed laparoscopically with a cholecystectomy. The cholecystectomy was completed laparoscopically, but the fundoplication was performed open instead. The Veteran underwent a VA examination in June 2007, during which he endorsed substernal burning, nocturnal burning, and frequent regurgitation after meals. He further endorsed reflux of acid into the substernal area, especially at night. He recalled possibly vomiting up blood in the recent past, but endorsed nausea without vomiting. He continues to use medication for treatment. The examiner indicated that the Veteran is a well-developed and well-nourished male with some epigastric tenderness. There were no masses felt. The Veteran reported continuing to use Mobic to treatment his joint symptoms, which the examiner thinks is aggravating his reflux symptoms and causing him to not respond to treatment. The examiner opined that the Veteran's nutrition and weight were good. During the March 2011 VA examination regarding the Veteran's Crohn's disease, the examiner noted that the Veteran's overall general health is poor (he did not identify which disabilities render his health poor), and there are no signs of significant weight loss or malnutrition, anemia, fistula, or abdominal masses. The Veteran was afforded a VA examination for his GERD in January 2012, during which he reported current symptoms including dysphagia 3 times per month with both solids and liquids, and severe in nature with difficulty getting it down. He endorsed moderate odynophagia; heartburn; epigastric pain 2 to 3 times per week, lasting 1 to 1.5 hours, worse at night; hematemesis, most recently one month ago with specks of blood in his vomit; melena, last time 2 to 3 weeks ago, lasting for 2 to 3 days; reflux and regurgitation, every time he eats; nausea, once per week; and vomiting 1 to 2 times a month. He denied all other symptoms. The Veteran reported that his GERD symptoms used to impact his work inasmuch as he felt like he would have regurgitation upon bending over. He reported that he is currently medically retired due to his psychiatric and joint problems. The impact of his GERD on his activities of daily living is that he avoids bending or squatting. The examiner indicated that the Veteran had no significant change in weight. The Veteran continues to undergo VA and private treatment for his GERD symptoms. The records reflect symptoms consistent with those reported during his VA examinations. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's GERD warrants a rating in excess of 30 percent. Although the Veteran has subjectively reported and the medical evidence shows some of the symptomatology associated with a 60 percent rating under Diagnostic Code 7346, his symptoms are not shown to be productive of severe impairment of health. The January 2012 VA examination shows complaints of dysphagia, odynophagia, heartburn, epigastric pain, rawness in his gums, hematemesis, melena, reflux/regurgitation, nausea, and vomiting. At no other during the timeframe on appeal has the Veteran's GERD been shown to be productive of severe impairment of health. Indeed, there is a notation that the Veteran's health is poor, but the examiner did not specify whether it was his service-connected GERD that caused his health to be poor. Moreover, the evidence does not show that the Veteran is malnourished, nor is he shown to have anemia or other significant problems associated with severe GERD. The impact his GERD had on his employment (prior to his retirement) was that he avoiding bending over and squatting. The evidence during the timeframe on appeal reflects consistent treatment for complaints related to his GERD and he has been treated with various forms of treatment, including medication. This prescription medication for his GERD has generally controlled his symptoms despite some treatment records that questioned the medication's effectiveness. Additionally, treatment records show suggestions by treating professionals that the Veteran stop using Mobic for treatment for his joint complaints due to potential for aggravation of GERD symptoms. Even the June 2007 examiner noted that it may be aggravating his symptoms. Moreover, the Veteran has not been shown to have anemia during the appeal period. Finally, the Veteran has not been shown to have any functional impairment that would reach a level of "severe impairment of health" at any time during the appeal period. The Board has considered the Veteran's lay testimony related to his GERD, but finds that his symptomatology fits squarely within the guidelines established for the currently-assigned 30 percent disability rating. Absent greater symptoms productive of severe impairment of health, the preponderance of the evidence is against the award of a disability rating greater than 30 percent. The appeal therefore must be denied. The Board concludes that based on the foregoing evidence assignment of staged ratings is not for application. Hart, 21 Vet. App. at 505. Extraschedular Considerations Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. Under the applicable criteria, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for the Veteran's service-connected GERD is inadequate. A comparison between the levels of severity and symptomatology of the Veteran's GERD symptoms with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. In particular, as discussed in detail above, the severity of the Veteran's GERD varied, but generally included complaints of dysphagia, odynophagia, heartburn, epigastric pain, rawness in his gums, hematemesis, melena, reflux/regurgitation, nausea, and vomiting, etc. These deficiencies are specifically contemplated under the GERD rating criteria for the 30 percent rating currently assigned. The record does not reflect that the Veteran's GERD caused severe impairment of health. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the rating schedule. Because the available schedular ratings adequately contemplate the Veteran's level of disability and symptomatology for her service-connected GERD, the second and third questions posed by Thun become moot. In short, there is nothing in the record to indicate that the Veteran's service-connected GERD causes impairment over and above that which is contemplated in the staged ratings that are now assigned. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Attorney Fees VA law and regulations permit an agent or attorney to charge fees for representation of a client before the Secretary of VA (Secretary) in conjunction with a claim for VA benefits. Effective June 23, 2008, the controlling regulations were changed to permit attorneys and agents to charge fees for representation after an Agency of Original Jurisdiction (AOJ) has issued a decision on a claim or claims and a notice of disagreement has been filed with respect to that decision. 73 Fed. Reg. 29,875 (May 22, 2008) (codified at 38 C.F.R. § 14.636 (2012)). Prior to such date, attorneys and agents were permitted to charge fees only for services provided after a final decision had been promulgated by the Board with respect to the issue or issues and only if the agent or attorney was retained not later than one year following the date that the decision by the Board was promulgated. 38 C.F.R. § 20.609(c) (2007). Pertinent to the current appeal, the regulatory changes provide that, in cases in which the notice of disagreement was filed on or before June 19, 2007, the requirements contained in 20.609(c) still apply. See 38 C.F.R. § 14.636(c)(2); 20.609(c) (2007). As the relevant notice of disagreement was filed in January 2010, the "new" version applies. According to VA regulatory authority, an agreement to pay fees directly to an attorney from past-due benefits will be honored by VA only if the following conditions are met: (i) the total fee payable (excluding expenses) does not exceed 20 percent of the total amount of the past-due benefits awarded; (ii) the amount of the fee is contingent on whether or not the claim is resolved in a manner favorable to the claimant or appellant, and; (iii) the award of past-due benefits results in a cash payment to a claimant or an appellant from which the fee may be deducted. 38 C.F.R. § 14.636(h). Analysis The Veteran contends that because he dismissed his attorney in August 2011, his attorney is not entitled to payment of the attorney fees in the amount of $1754.40. By way of background, the Veteran and his former attorney signed a Power of Attorney designation in October 2007. Additionally, the parties agreed that the attorney would be awarded 20 percent of any past-due benefits awarded to the Veteran. Service connection for depression was awarded in a November 2009 rating decision. The Veteran was assigned a 30 percent rating, effective July 13, 2009. In February 2010, the Veteran's attorney submitted a Notice of Disagreement to the November 2009 rating decision. The Veteran disagreed with both the rating percentage and the effective date of the grant of service connection for depression. In a September 2011 rating decision, the RO continued the 30 percent rating, but awarded an effective date of October 18, 2007. In an August 2011 letter, the Veteran sent a letter to Attorney Huffman indicating that he wished to withdraw his power of attorney. He indicated that he was now represented by DAV, and wished for Attorney Huffman to provide him with copies of his file. In September 2011, Attorney Huffman presented the Veteran with a statement of VA expenses totaling $48.23. That same month, the Veteran remitted a check to Attorney Huffman in the amount of $48.23, and in the memo line wrote "VA Expenses-paid in full." There is no evidence, however, that the attorney fees contract was ever revoked. Initially, the Board notes that there is no question as to whether the attorney entered into a valid fee agreement with the Veteran. The question remains is whether the attorney is entitled to 20 percent of the past due benefits related to the September 2011 rating decision awarding an earlier effective date for the grant of service connection for depression. Upon careful review of the evidence of record, the Board finds that the award of $1754.40 attorney fees for past-due benefits related to his September 2011 award to Attorney Huffman was proper. The total fee did not exceed 20 percent of the total amount of the past-due benefits awarded; the fee was contingent on whether the claim was resolved in a manner favorable to the Veteran; and the award of past-due benefits resulted in a cash payment the Veteran from which the fee was deducted. See 38 C.F.R. § 14.636(h). Additionally, neither party revoked the attorney fee agreement. The Board appreciates the Veteran's contentions that he withdrew his Power of Attorney from Mr. Huffman prior to the grant of the earlier effective date for service-connected depression. However, Attorney Huffman was the attorney/representative of record at the time he filed the Notice of Disagreement to the November 2009 rating decision. And although the Veteran withdrew his Power of Attorney and services from Attorney Huffman, this does not revoke that attorney fee agreement. Additionally, Attorney Huffman never revoked the attorney fee agreement. As such, the agreement is valid and the payment of $1754.40 in attorney fees is proper. ORDER Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. Service connection for a low back disability is granted. Service connection for Crohn's disease is granted. An initial rating in excess of 30 percent for GERD is denied. The disbursement of attorney fees in the amount of $1754.40 to David L. Huffman was proper. REMAND The Board finds that further evidentiary development is necessary regarding the Veteran's claims of entitlement to service connection for hiatal hernia, increased rating for depression, entitlement to a TDIU, and entitlement to a temporary total disability rating following Nissen fundoplication surgery. Service Connection With respect to the service connection claim, it was most recently denied in a February 2012 supplemental statement of the case because he was not shown to have a hiatal hernia during his January 2012 VA examination. Since the January 2012 VA examination, the Veteran underwent a CT of the abdomen in June 2013. At that time a hiatal hernia was seen. Based on this new evidence, the Board finds that the Veteran's service connection claim should be remanded for a new opinion as to the etiology of his claimed hiatal hernia, to include as secondary to service-connected GERD. Increased Rating The Veteran seeks a rating in excess of 30 percent for his service-connected depression. His most recent VA examination was performed in November 2009, and he has reported increased symptoms since that time. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). As such, the Veteran's claim must be remanded for a new VA examination to determine the current severity of his depression. Intertwined Issues The Veteran's claim for a TDIU and claim for a total disability rating for convalescence are inextricably intertwined with the above claims; consideration of this matter must be deferred pending resolution of this claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Veteran has just been awarded service connection for Crohn's disease, and his back and bilateral knee disabilities. Indeed, the RO's assignment of ratings for these disabilities could impact his TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims files, and any pertinent evidence in Virtual VA, should be forwarded to the January 2012 examiner, if available, for a supplemental opinion. The examiner is asked to provide a more clear opinion as to the etiology of the Veteran's claimed hiatal hernia. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's hiatal hernia is etiologically related to his active service. The examiner should keep in mind that a hiatal hernia has been shown in a June 2013 VA CT report. The examiner is also asked to determine whether the Veteran's hiatal hernia is caused or chronically worsened by the service-connected GERD. The examiner is asked to provide an opinion with respect to the Veteran's 2005 Nissen fundoplication and whether it is the type of surgery performed only for hiatal hernias or is it in response to the worsening of GERD symptoms. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. It is left up to the examiner's discretion as to whether another physical examination of the Veteran is necessary. 2. The RO or the AMC also should arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected depression. The claims folders, and any pertinent evidence in Virtual VA that is not contained in the claims folders, must be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected depression on his ability to work, to include whether it is sufficient by itself to render the Veteran unable to obtain or maintain any form of substantially gainful employment consistent with his education and employment background. The supporting rationale for all opinions expressed must be provided. 3. The RO should undertake any other development it determines to be warranted. 4. Then, the RO should readjudicate the Veteran's claims on appeal-including his TDIU and temporary total rating claims. If any claim remains denied, a Supplemental Statement of the Case must be furnished to the Veteran and his representative and they must be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs