Citation Nr: 1512600 Decision Date: 03/25/15 Archive Date: 04/01/15 DOCKET NO. 11-18 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative changes of the right knee. 3. Entitlement to an initial evaluation in excess of 10 percent for ulcerative colitis with hiatal hernia and gastroesophageal reflux disease (GERD). 4. Entitlement to an initial compensable evaluation for adjustment disorder with anxiety. 5. Entitlement to an initial compensable evaluation for pilonidal cyst. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from May 1994 to July 1995, from February 2003 to September 2003, from July 2004 to January 2006, and from August 2006 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In January 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference between the Atlanta, Georgia RO and the Board's offices in Washington DC. A transcript of his hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As an initial matter, the Board observes that since the issuance of a Statement of the Case (SOC) in this appeal, medical records from VA facilities have been added to the record. The Veteran has not waived AOJ review of these records; however, in light of the Board's remand of all issues on appeal, there is no prejudice to the Veteran, as the AOJ will review these records in its future adjudication of the appeal. The Veteran seeks service connection for bilateral hearing loss disability. In its December 2009 rating decision, the AOJ denied this claim on the basis that VA examination revealed hearing acuity that did not amount to a disability for VA purposes. See 38 C.F.R. § 3.385. The Board notes, however, that an audiogram conducted in April 2007, during a period of active service, did in fact show hearing loss disability for VA compensation purposes. In that regard, testing at that time indicated that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater. Moreover, the Veteran has testified that his hearing has worsened since his 2009 VA examination, and maintains that his current hearing acuity might rise to the level of disability for VA compensation purposes. The Board thus concludes that a current VA audiological examination is warranted to address the audiogram conducted in 2007 and to determine whether the Veteran has current hearing loss disability for VA compensation purposes. With respect to the evaluation of his right knee disability, the Veteran testified in January 2015 that he experiences instability of the right knee joint, and that VA has issued braces. Because the Veteran describes worsening of his knee disability, and because he has not been examined since 2009, the Board finds that a current examination is warranted. Regarding ulcerative colitis with hiatal hernia and GERD, the Board notes that during the January 2015 hearing, the parties discussed the possibility that separate compensable evaluations might be available for the various gastrointestinal disabilities for which the Veteran is service-connected. In this regard, the Board notes that VA regulations provide 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 in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 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 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. In this case, the Veteran's gastrointestinal disability is currently evaluated as 10 percent disabling pursuant to Diagnostic code 7346-7323. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Here, diagnostic code 7346 refers to hiatal hernia and diagnostic code 7232 refers to ulcerative colitis. A higher 30 percent evaluation under diagnostic code 7346 contemplates persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Under diagnostic code 7323, a 30 percent evaluation requires evidence of moderately severe ulcerative colitis with frequent exacerbations. In his hearing testimony, the Veteran asserted that his gastrointestinal disability had worsened and that it impacted his activities of daily living. He specified that he had frequent exacerbations. The Board concludes that a current examination is necessary to determine the severity of the gastrointestinal disability, and to ensure that the predominant disability picture is accurately reflected in the evaluation of this disability. The Veteran seeks a compensable evaluation for his service-connected psychiatric disorder, which is characterized by the AOJ as adjustment disorder with anxiety. This characterization of the disability is apparently reflective of a diagnosis of adjustment disorder with anxious mood made by a VA fee basis examiner in September 2009. Since then, VA treatment reports added to the record reflect a diagnosis of PTSD as early as September 2011. In light of this diagnosis, in addition to the Veteran's testimony that the character of his symptoms has not changed, the Board finds that a current examination is warranted to determine the accurate diagnosis of the service-connected psychiatric disorder and its severity. Finally, the Veteran seeks a compensable evaluation for residuals of a pilonidal cyst and its removal. On VA general medical examination in September 2009, the examiner identified various scars, to include a linear 7 cm x 1 cm "deep scar with underlying tissue damage" on the posterior side of the trunk on the buttocks. He also identified a scar on the right buttocks that was 3 cm x 1 cm, and a rectangular shaped scar that was 3 cm x 2 cm. The examiner did not discuss whether all of these scars were related to the Veteran's in-service cystectomy. Absent this information, the Board is unable to determine whether a compensable evaluation is warranted for this disability. Thus, an examination is necessary to identify the residuals of the Veteran's pilonidal cyst and its removal. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently present hearing loss disability. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should specify whether the Veteran has current hearing loss for VA disability compensation purposes. If so, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent), that any such hearing loss disability is related to any disease or injury in service, to include the Veteran's conceded noise exposure. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Review of the entire claims file is required; however, the examiner's attention is invited to the in-service audiogram conducted in 2007, as well as the Veteran's assertion that his hearing has worsened since his 2009 VA examination. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to the Veteran's lay statements and the service treatment records. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should report the results of range of motion testing and note the point at which the Veteran experiences pain. The examiner should also comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss that develops on repetitive use or during flare-up. The examiner should also describe any other associated deformity or functional impairment of the Veteran's right knee, and indicate whether there is ankylosis of the right knee. The examiner should also specify whether there is lateral subluxation or instability of the right knee, and if so, whether it is slight, moderate, or severe. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA gastrointestinal examination to determine the nature and severity of his gastrointestinal disabilities, including ulcerative colitis, hiatal hernia, and GERD. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should identify all manifestations of the Veteran's service-connected gastrointestinal disorders and if possible, should specify which disorder's symptoms are of predominant severity. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for a VA psychiatric examination to determine the nature and severity of his service-connected psychiatric disorder. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should identify all currently present acquired psychiatric disorders and their severity. If more than one acquired psychiatric disorder is diagnosed, the examiner should provide a discussion as to whether the manifestations of such disorders can be separately identified and assessed. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Schedule the Veteran for a VA examination to determine the nature and severity of any residuals of a pilonidal cyst and its removal. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should identify all currently present residuals of the in-service pilonidal cyst and its removal, to include all associated scars. The severity of any scar determined to be associated with this disability should be fully discussed. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. Review the examination reports for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 7. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).