Citation Nr: 1632850 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 10-46 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to increases in the ratings assigned for a left knee disability (currently assigned staged ratings of 10 percent prior to November 10, 2014, and a combined 40 percent from that date. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 2006 to September 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript of that hearing is associated with the record. In March 2014, these matters were remanded for additional development. The case is now assigned to the undersigned. By April 2016 correspondence, the Veteran was advised of her right for a hearing before a VLJ who would decide her appeal. She did not respond, and it is assumed that she does not desire another hearing [As reflected in a December 2014 rating decision, the Veteran's left knee disability is currently assigned two ratings under Diagnostic Code (Code) 5257 (for status-post multiple surgical procedures and for left knee subluxation/instability) and assigned a separate rating under Code 5260 for left knee limitation of extension. While governing law (as explained in VA General Counsel (GC) opinions VAOPGCPREC 23-97, VAOPGCPREC 9-98, and VAOGCPREC 9-2004) allows for separate ratings for limitation of motion of the knee and for recurrent subluxation or lateral instability, as well as for symptomatic semilunar cartilage or removal of semilunar cartilage (under Codes 5258 or 5259), the ratings should be under different Codes rather than two ratings under the same Code, as that violates the prohibition against pyramiding. See generally 38 C.F.R. § 4.14.] The issue pertaining to the rating assigned for a left knee disability is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on her part is required. FINDING OF FACT At no time under consideration is the Veteran's GERD shown to have been manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or by other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW A rating in excess of 30 percent for GERD is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 4.7, 4.119, Code 7399-7346 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duty to notify was satisfied by letters in August 2009 and March 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2015); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. VA examinations were conducted in conjunction with this appeal in October 2009, and, pursuant to the Board's March 2014 remand, in November 2014. The Board finds that the examination reports are adequate for rating purposes as they include all findings necessary to decide this matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The AOJ has substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any pertinent evidence that remains outstanding; VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's GERD is rated under 38 C.F.R. § 4.114, Code 7399-7346. Hyphenated diagnostic codes indicate that the rating is by analogy. Here, the rating is by analogy to the criteria for rating hiatal hernia (Code 7346). Under Code 7346, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or by other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. On November 2009 VA esophagus and hiatal hernia examination, the Veteran denied any history of hospitalization or surgery relating to the esophagus, trauma to the esophagus, esophageal neoplasm, nausea or vomiting associated with esophageal disease, or dysphagia. She reported esophageal distress accompanied by occasional severe pain on a less than weekly basis, and heartburn several times a week. She denied regurgitation, hematemesis or melena, or esophageal dilation. On examination, her overall general health was good, and there were no signs of anemia, significant weight loss, or malnutrition. She did not have any time lost from work due to GERD during the last 12-month period, but reported it did have significant effects on her usual occupation, including decreased concentration, inappropriate behavior, and pain, and also had moderate effects on her usual daily activities, including recreation, traveling, and feeding. At the November 2011 videoconference hearing, the Veteran testified that she has stabbing chest pains associated with her GERD, as well as reflux with coughing. On November 2014 VA esophageal conditions examination, pursuant to the Board's March 2014 remand, the Veteran reported chronic GERD since childhood, which became worse during service and continues to be so since. She took Zantac with some relief. She denied hematemesis, melena, dysphagia, or surgery for hiatal hernia. She indicated that her prior episodes of chest pain were attributed to GERD. She was not on any special diets, but avoided spicy foods. All prior endoscopies and abdomen ultrasounds were normal, except for GERD. Her symptoms included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, and sleep disturbances caused by esophageal reflux. It was noted that the GERD required twice daily medication with moderate pain still unrelieved; the examiner opined that the Veteran's esophageal condition did not impact her ability to work. The record does not include any reports of treatment for the Veteran's GERD during the period under consideration; the Veteran has not identified any records of treatment for GERD (either private or VA) that are outstanding. The disability picture of the Veteran's GERD presented by the examination reports and her hearing testimony does not warrant a rating in excess of 30 percent for the GERD for any period of time under consideration. The Board notes that the criteria for a 60 percent rating are in the conjunctive and require, in addition to the reported symptoms of pain and vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. The evidence of record does not show that the Veteran's symptoms have included material weight loss and hematemesis or melena with moderate anemia or any other symptom combination productive of severe impairment of health. Material weight loss and anemia have not been noted, and no health care provider has indicated that the Veteran's GERD symptoms produce severe impairment of health. The evidentiary record also does not show any further functional impairment that is not encompassed by the schedular criteria for the 30 percent rating now assigned. The reported symptoms and functional impairment are fully contemplated by the schedular criteria. Consequently, those criteria are not inadequate, and referral for extraschedular consideration is not indicated. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the evidence of record does not suggest (and the Veteran has not alleged) that she is unemployable due to GERD. Hence, the matter of entitlement to a total rating based on individual unemployability is not raised in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 30 percent for GERD is denied. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to her claim. Specifically, the Board notes that pertinent medical evidence identified is outstanding. In a May 2014 medical release authorization, the Veteran reported receiving treatment from the University of Florida and from Jacksonville Orthopedic Institute. Although the RO obtained records from the University of Florida, there is no indication that records from Jacksonville Orthopedic Institute were sought. In an October 2014 medical release authorization, the Veteran reported receiving treatment from an unidentified facility from December 2011 to September 2012. (The Board notes that the address provided for this unnamed facility is the same as the address provided for Jacksonville Orthopedic Institute in the May 2014 medical release.) Regarding the Veteran's incomplete October 2014 medical release authorization, the Court's guidance is clear: if a veteran provides an incomplete response, VA must advise the veteran of the information missing and provide the veteran opportunity to respond. There is no indication in the file that the RO advised the Veteran that her response was incomplete or afforded her opportunity to complete it. As records of all evaluations and treatment for the disability during an evaluation period are pertinent evidence in a claim for increase, such records must be obtained. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify all providers of evaluations or treatment she received for her service-connected left knee disability during the evaluation period and to provide authorizations for VA to obtain records of any such private evaluations or treatment, to specifically include records pertaining to her treatment at Jacksonville Orthopedic Institute. The AOJ should secure for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record). If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is her responsibility to ensure that private records are received. If such records exist, the AOJ should specifically secure for the record complete clinical records of any VA evaluations and treatment the Veteran has received for her left knee disability. 2. The AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and her representative opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs