Citation Nr: 1329622 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 08-21 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for bilateral pes planus, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for sarcoidosis, currently evaluated as 30 percent disabling. 3. Entitlement to an increased rating for gastritis with duodenitis, currently evaluated as 10 percent disabling. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) with hiatal hernia. 5. Entitlement to an initial compensable rating for onychomycosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from May to August 1986, and from October 1990 to July 1996. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied increased ratings for pes planus, sarcoidosis, and gastritis with duodenitis; and a July 2008 rating decision of the RO in Roanoke, Virginia, which denied service connection for GERD and onychomycosis. The Board notes that jurisdiction of the claims currently remains with the RO in Roanoke, Virginia, although in March 20011 and March 2013 statements, the appellant indicated that he had relocated to North Carolina. This matter is referred to the attention of the RO for appropriate action. In a February 2012 decision, the Board granted service connection for onychomycosis. The remaining issues on appeal were remanded for additional evidentiary development and due process considerations. While the matter was in remand status, in a February 2012 rating decision, the RO effectuated the Board's decision awarding service connection for onychomycosis. The RO assigned an initial noncompensable rating for that disability, effective December 28, 2006, the date of receipt of the appellant's claim. The following month, the appellant submitted a statement claiming that he was entitled to a higher rating for his service-connected onychomycosis. Although the appellant's statement appears to be a notice of disagreement, the record currently available to the Board, including the appellant's Virtual VA and VBMS files, contains no indication that the RO has issued a Statement of the Case addressing this matter. A remand is therefore necessary. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary. As noted by the Board in its December 2012 decision, the appellant has filed claims of service connection for a liver disability and obstructive sleep apnea. Additionally, in December 2012, the appellant submitted a claim of service connection for plantar fasciitis and in May 2013, he submitted a VA Form 28-1900, Application for Vocational Rehabilitation. The record currently available to the Board contains no indication that these matters have been addressed by the RO in the first instance. Therefore, the Board does not have jurisdiction over them and they are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Entitlement to an initial compensable rating for onychomycosis. As set forth above, in a February 2012 rating decision, the RO effectuated a Board decision awarding service connection for onychomycosis. The RO assigned an initial noncompensable rating for that disability, effective December 28, 2006. In March 2012, the appellant submitted a statement claiming that he was entitled to a higher rating for his service-connected onychomycosis. The record currently available to the Board, including the appellant's Virtual VA and VBMS files, contains no indication that the RO has issued a Statement of the Case addressing this matter. A remand is therefore necessary. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary. Entitlement to an increased rating for sarcoidosis The appellant last underwent a pulmonary examination for VA compensation purposes in April 2010. At that time, he denied having any overall functional impairment from his service-connected sarcoidosis. Moreover, pre bronchodilator pulmonary function testing conducted in connection with the examination showed normal values for FVC and FEV1. The examiner noted that post bronchodilator testing was not necessary because the pre bronchodilator test had been normal and there were no discrepancies between the pulmonary function test findings and the clinical examination. He also noted that a DLCO(SB) test was not necessary as the pulmonary function test results were sufficient to evaluate the pulmonary status of the appellant. The record on appeal contains VA outpatient clinical records showing that since the April 2010 fee basis medical examination was conducted, the appellant was seen in the VA pulmonary clinic in June 2011 for a routine follow-up of his sarcoidosis. At that time, a pulmonary function test showed prebronchodilator findings of FVC of 80 percent, FEV1 of 67 percent, FEV1/FVC of 68 percent, and DLCO of 45 percent. Although postbronchodilator testing was not performed, and although the examiner attributed the appellant's reduced DLCO findings to his nonservice-connected emphysema, the Board finds that in light of the applicable rating criteria, an additional examination is needed in order to ensure that the current severity of the appellant's service-connected pulmonary sarcoidosis is clear. 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6846 (2012). Entitlement to service connection for GERD The record on appeal shows that in February 2012, the appellant was afforded a VA medical examination in connection with his claim of service connection for GERD. After examining the appellant and reviewing the record, the examiner concluded that the appellant's current GERD had not had its onset during active service nor was it causally related to his active service, any incident therein, or the appellant's service-connected gastritis/duodenitis. The examiner's opinion, however, did not address the question of whether the appellant's current GERD may be aggravated by his service-connected gastritis/duodenitis. To ensure that VA's duty to assist has been met, therefore, an additional opinion is necessary. See 38 C.F.R. § 3.159(c)(4) (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). The Board also notes that since this matter was last reviewed by the RO in the November 2012 Supplemental Statement of the Case, the appellant submitted additional evidence in support of his claim. He did not waive initial RO consideration of this additional evidence. 38 C.F.R. § 20.1304 (2012). This additional evidence must be reviewed by the RO on remand. Entitlement to increased ratings for gastritis with duodenitis and bilateral pes planus The RO has rated the appellant's service-connected gastritis with duodenitis pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7305 and 7307, the rating criteria for gastritis and duodenal ulcer. As set forth above, in this appeal, the appellant also seeks service-connection for an additional gastrointestinal disability, GERD due to hiatal hernia. GERD is evaluated under VA's Rating Schedule under Diagnostic Code 7346. VA's Rating Schedule provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113 (2012). For that reason, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive may not be combined with each other. Rather, a single evaluation is assigned under the diagnostic code which reflects 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 (2012). Given the current state of the record before the Board, additional action and clarification is necessary prior to further appellate consideration of the issue of entitlement to an increased rating for gastritis with duodenitis. Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). Under these circumstances, an additional examination is necessary. For similar reasons, an additional examination is necessary with respect to the appellant's claim for an increased rating for bilateral pes planus, particularly given his pending claim of service connection for plantar fasciitis and the evidence of record documenting other foot pathology including arthritis. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a Statement of the Case to the appellant and his representative addressing the issue of entitlement to an initial compensable rating for onychomycosis. The Statement of the Case should include all relevant law and regulations pertaining to the claim. The appellant must be advised of the time limit in which he may file a substantive appeal, if he so desires. 38 C.F.R. § 20.302(b) (2012). This issue should then be returned to the Board for further appellate consideration, only if an appeal is properly perfected. 2. The appellant should be afforded a VA pulmonary examination to determine the current severity of his service- connected sarcoidosis. The appellant's claims folder and any additional records in his Virtual VA and VBMS files should be made available to the examiner for review in connection with the examination. All indicated tests and studies should be performed, including a pulmonary function test measuring postbronchodilator values for FEV-1; FEV-1/FVC; and DLCO (SB). The examiner should also provide a detailed account of the appellant's current pulmonary symptomatology, to include indicating whether systemic high dose (therapeutic) corticosteroids are required for control and whether there is cor pulmonale, cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats and weight loss despite treatment. In delineating the appellant's pulmonary symptomatology, the examiner must indicate, to the extent possible, which symptoms, if any, are manifestations of the service- connected sarcoidosis and which, if any, are attributable to any nonservice- connected pulmonary disability, including emphysema. A rationale for any opinion offered should be provided. 3. The appellant's claims folder and any additional records in the appellant's Virtual VA and VBMS files should be returned to the examiner who conducted the April 2012 VA medical examination, if available, for the purpose of obtaining a clarifying opinion as to the nature and etiology of his GERD. If the examiner who conducted the April 2012 examination is no longer available, the appellant should be scheduled for another VA medical examination for the purpose of obtaining a clarifying opinion as to the etiology of his GERD. In either case, after reviewing the record, the examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the appellant's current GERD is aggravated (i.e. permanently made worse) by his service-connected gastritis/duodenitis. A complete rationale must be provided for any opinion offered. 4. The appellant should also be afforded a VA medical examination for the purposes of clarifying the nature and severity of his current service- connected gastrointestinal disabilities, currently identified as gastritis/duodenitis. The claims folder must be provided to the examiner for review in connection with the examination. The examiner should be asked to specifically delineate all gastrointestinal symptomatology evident on examination which is attributable to the service-connected gastritis/duodenitis, as opposed to any gastrointestinal symptomatology attributable to a nonservice-connected disability. The examiner should also comment on the frequency and severity of those service-connected symptoms. A complete rationale for any opinions expressed must be provided. 5. The appellant should be afforded a VA medical examination for the purposes of determining the severity of his service-connected bilateral pes planus. The claims folder must be provided to the examiner for review in connection with the examination. The examiner should be asked to specifically delineate all symptomatology associated with the appellant's service-connected bilateral pes planus, to include specifying whether the following are present or absent: extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The examiner should also characterize the severity of the appellant's service-connected bilateral pes planus, to include stating whether it is appropriately characterized as moderate, severe, or pronounced. Any foot symptomatology or abnormalities not associated with the service-connected bilateral pes planus should be specifically delineated. A complete rationale for any opinions expressed must be provided. 6. After conducting any additional development deemed necessary, the RO should readjudicate the appellant's claims, considering all the evidence of record. If any claim remains denied, he and his representative should be provided with a Supplemental Statement of the Case as appropriate and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if in order. The appellant 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). _________________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).