Citation Nr: 1631123 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 12-15 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to an initial rating higher than 20 percent for a low back disability. ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2005 to March 2009. His decorations include the Air Force Combat Action Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction has since transferred to St. Petersburg, Florida. In December 2014, the Board remanded this matter for additional development. The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record as part of VA's paperless Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Since March 15, 2009, the Veteran's GERD has been characterized by persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance caused by esophageal reflux, resulting in considerable impairment of health. 2. At no point since March 15, 2009, has the Veteran's low back disability been productive of flexion limited to 30 degrees or less; unfavorable or favorable ankylosis; or incapacitating episodes having a total duration of at least 4 weeks. 3. Since March 15, 2009, the Veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in a disability analogous to mild incomplete paralysis of the sciatic nerve. 4. Since March 15, 2009, the Veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in a disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent for GERD have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.114, Diagnostic Code (DC) 7346 (2015). 2. The criteria for a rating higher than 20 percent for a low back disability have not been met at any time since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§4.59, 4.71a, DC 5237 (2015). 3. The criteria for a separate 10 percent rating for right lower extremity mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2015). 4. The criteria for a separate 10 percent rating for left lower extremity mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the appeal arises from the initial ratings assigned following the grant of service connection, no notice is required under the Veterans Claims Assistance Act of 2000. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (interpreting 38 U.S.C.A. § 5103 (West 2014). VA has complied with its duty to assist the Veteran in obtaining evidence that could reasonably substantiate entitlement to higher initial ratings by providing adequate examinations. All identified records have been obtained. There has been substantial compliance with the Board remand in that VA treatment records were obtained; the Veteran was afforded new and adequate examinations; and a supplemental statement of the case was issued. The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (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 the downstream elements. Id. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). A. GERD The RO has evaluated the Veteran's GERD under 38 C.F.R. § 4.114, DC 7346 at 10 percent since March 15, 2009. GERD is rated as analogous to hiatal hernia under 38 C.F.R. § 4.114, DC 7346. DC 7346 provides a 60 percent rating for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis (vomiting of blood) or melena (black, tarry feces associated with gastrointestinal hemorrhage) with moderate anemia (a decreased number of red blood cells); or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted for a hiatal hernia with persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation, of less severity. VA regulations provide that, for purposes of evaluating conditions under 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112 (2015). On VA examination in April 2009, the Veteran reported regurgitation three to four times a week and heartburn several times a day. He used Prevacid and Tums for some relief. At night, he experienced regurgitation once every couple of months. He further reported that both shoulders hurt daily with physical activity and that his shoulders were sore, stiff, and had a burning sensation since April 2006. Upon physical examination, the examiner noted tenderness on the left and right shoulder. It was also noted that he gained fifteen pounds in the last year. He had no hematemesis. He was diagnosed with GERD. In his June 2009 substantive appeal, the Veteran stated that medications were no longer effective and that he currently experienced persistent heartburn and woke up five times per week from regurgitation and difficulty breathing and swallowing. He further stated that symptoms during the day, to include shoulder pain, impeded his progress at work. On VA examination in March 2015, the Veteran reported that he used over-the-counter medication as needed and had not used prescription medication since 2013. He reported that he continued to experience heartburn. The examiner found no evidence of esophageal stricture, spasm of esophagus, or an acquired diverticulum. The examiner found no impact on the Veteran's ability to work. VA examination reports and the Veteran's statements reflect that he complained that GERD was productive of dysphasia, pyrosis, regurgitation, and substernal or arm pain, which the Board concludes is consistent with a finding of considerable impairment of health. After reviewing all of the clinical evidence and subjective complaints, the Board finds that a 30 percent rating for GERD under 38 C.F.R. § 4.114, DC 7346, is warranted. Conversely, the Veteran's symptomatology does not satisfy the criteria for a 60 percent rating. He has consistently denied vomiting, hematemesis, and melena; he has not indicated, nor does the record reflect, material weight loss or anemia. Therefore his does not rise to the level of being productive of severe impairment to health. The preponderance of the evidence shows that the Veteran's GERD does not more nearly approximate the criteria for a 60 percent rating. The Board has reviewed other provisions in the Schedule related to the digestive system, but there is no provision in the schedule more appropriate for rating the digestive disability at issue. Schafrath, see also Tedeschi v. Brown, 7 Vet. App. 411 (1995) (holding that one DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology). B. Low Back Disability When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, DC 5237. Pursuant to this formula, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The General Rating Formula requires that separate ratings be provided for the neurologic manifestations of the back disability. General Rating Formula for Diseases and Injuries of the Spine, Note (1). The rating schedule also includes criteria for evaluating intervertebral disc syndrome (IVDS). Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. Under the IVDS formula, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A rating of 20 percent is warranted where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the Veteran's back disability. On VA examination in April 2009, the Veteran complained of constant stiffness and pain, that was at a level of eight or nine out of ten on the pain scale, and that worsened with bending and physical activity. He denied radiation of pain into the lower extremities but reported numbness in his hands and feet. Range of motion testing of the low back found forward flexion to 50 degrees with pain at the end; extension to 15 degrees; right lateral flexion to 15 degrees and left lateral flexion to 12 degrees; and right lateral rotation to 20 degrees and left lateral rotation to 15 degrees. Range of motion testing following repetitive movements found forward flexion to 55; extension to 15 degrees; right lateral flexion to 12 degrees, left lateral flexion to 10 degrees; and right lateral rotation to 15 degrees and left lateral rotation to 15 degrees. The examiner noted that repetitive movement produced pain. Upon physical examination, the examiner found tenderness over the lumbar paraspinal muscles. There were no muscle spasms and lumbar lordosis was maintained. Straight leg raising, muscle strength, reflexes, coordination, and sensory testing were normal. His posture and gait were normal. There was no loss of control of bowels or bladder. The Veteran was diagnosed with degenerative disc disease and fact joint arthropathy of the lumbar spine without radiculopathy. On VA examination in March 2015, the Veteran denied flare-ups. On physical examination, range of motion was forward flexion to 90 degrees, extension to 20 degrees with pain, right and left lateral flexion of 30 degrees, and right and left lateral rotation of 30 degrees. There was no additional loss of function or range of motion after three repetitions. The examiner found no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. Muscle strength testing, deep tendon reflexes, straight leg raising, and sensory examination were normal. Although the Veteran reported symptoms of bilateral lower extremity radiculopathy, the examiner found no objective evidence of bilateral lower extremity radiculopathy. The VA examiner found no IVDS of the spine. The Veteran reported that the back disability affected his ability to lift heavy equipment at work. The VA treatment records are consistent with the findings and conclusions set forth in the April 2009 and March 2015 VA examination reports. He was seen on a number of occasions, including on one occasion in May 2014 at the emergency room, with complaints of pain and requests for pain medication. In May 2014, muscle strength was normal; but straight leg raising was positive at 45 to 60 degrees in both legs. His pain level was assessed as 0 at the time he left the emergency room In sum, after review of the totality of the competent medical evidence on file regarding the Veteran's low back symptomatology, a rating in excess of 20 percent, is not warranted based on range of motion because the evidence on file does not show symptoms productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine, so as to warrant a 40 percent disability rating. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; Hart v. Mansfield, 21 Vet. App. 505 (2007). The preponderance of the evidence is also against the finding of a higher rating under the formula for rating IVDS based on incapacitating episodes. Even considering pain, weakness, and functional impairment, none of the findings would warrant a disability rating in excess of 20 percent based on range of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243; DeLuca v. Brown, 8 Vet. App. 202 (1995). Separate Evaluation for Neurological Impairment In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. DC 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2014). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. During the April 2009 VA examination, the Veteran reported that his feet became numb when sitting down or sitting on the floor. This numbness lasts until he stood up and walked and might last for about twenty minutes. In his June 2009 substantive appeal, he reported pain and numbness in his legs. He again reported numbness in his feet to the March 2015 VA examiner. The April 2009 and March 2015 VA examiners found no objective evidence of bilateral lower extremity radiculopathy on examination. Muscle strength, deep tendon reflexes and sensory examination were normal. VA treatment records reveal a history of lumbosacral neuritis. A January 2011 MRI revealed chronic bilateral psuedoradicular low back pain. Thus, the Board finds that a 10 percent evaluation is warranted for mild radiculopathy of the left lower extremity and a 10 percent evaluation is warranted for mild radiculopathy of the right lower extremity. However, the next higher 20 percent evaluation is not warranted under DC 8520 for radiculopathy of the bilateral lower extremities as the Veteran's neurological symptoms were not shown to be moderate in degree, as evidenced by the VA examination reports. See 38 C.F.R. § 4.124a. Similarly, a 40 percent evaluation is not warranted for the bilateral lower extremities since his neurological symptoms are not shown to be moderately severe in degree. The 60 percent evaluation is not warranted for the bilateral lower extremities as the Veteran's neurological symptoms are not shown to cause severe incomplete paralysis with marked muscle atrophy. There is also no evidence of complete paralysis of the sciatic nerve to warrant assigning an 80 percent disability rating for the bilateral lower extremities. Moreover, the evidence of record does not support a separate rating for other associated neurological abnormalities in the form of bladder, bowel, or erectile dysfunction; the Veteran has consistently denied experiencing these issues at his VA spine examinations. Extraschedular Ratings The Board has considered whether referral for consideration of extraschedular ratings is warranted. 38 C.F.R. § 3.321(b) (2015). Referral is not warranted in this case, because the record does not show manifestations of GERD or the back disability that are outside of the criteria contemplated in the rating schedule. See Thune v. Peake, 22 Vet. App. 111(2008). VA is also required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating. Johnson v. McDonald, at 1365-6. In the instant case there also no evidence or allegation that the combined rating for the service connected disabilities, which rises to 90 percent with the grants in this decision, would be inadequate to compensate for combined effects of the service connected disabilities. Further because there is no intermediate rating between 90 and 100, or total; there is essentially no gap to fill. The record reflects that the Veteran is currently employed and there is no allegation or evidence that this employment is marginal. Accordingly, the question of entitlement to a total rating for compensation based on individual unemployability is not raised. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating of 30 percent for GERD, effective the date of service connection, is granted. Entitlement to an evaluation in excess of 20 percent for a low back disability is denied. An initial rating of 10 percent, for radiculopathy of the right lower extremity, effective the date of service connection for the low back disability, is granted. An initial rating of 10 percent, for radiculopathy of the left lower extremity, effective the date of service connection for the low back disability, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs