Citation Nr: 1706830 Decision Date: 03/06/17 Archive Date: 03/16/17 DOCKET NO. 10-20 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a cervical strain. 2. Entitlement to an initial rating in excess of 20 percent for lumbar spine disability, status post fusion and laminectomy. 3. Entitlement to an initial rating in excess of 10 percent prior to March 31, 2016, and 60 percent beginning on March 31, 2016, for gastroesophageal reflux disease (GERD) (previously characterized as irritable colon syndrome). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service in the Air Force from November 1982 to June 2007. These claims are before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision, in which the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this case currently resides with the St. Petersburg, Florida, RO The Veteran testified in support of these claims during a travel Board hearing held at the RO before the undersigned in July 2012. A transcript of this hearing is of record. The claims at issue were before the Board in June 2014 and January 2016 when they were remanded for additional development. A June 2016 rating decision awarded an increased 60 percent rating for GERD, effective March 31, 2016; the Veteran continued her appeal. In August 2015 and July 2016, the Veteran submitted statements essentially requesting equitable relief from VA. In this regard, the Secretary of VA, and not the Board, has the sole discretionary power to provide equitable relief. The Veteran is free to apply to the Secretary and request that he exercise his discretionary authority to grant any of her claims on an equitable basis. See 38 U.S.C.A. § 503 (West 2014); 38 C.F.R. § 2.7 (2016); see also Darrow v. Derwinski, 2 Vet. App. 303, 304-06(1992); Taylor v. West, 11 Vet. App. 436, 440-41(1998). The Board is without jurisdiction to consider matters which are solely committed to the Secretary's exercise of discretion. See McCay v. Brown, 9 Vet. App. 183, 189(1996). VA processed this appeal electronically, utilizing Virtual VA and Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. Review of this appeal thus contemplates both electronic records. The claims of entitlement to an initial rating in excess of 20 percent for a cervical strain, and entitlement to an initial rating in excess of 20 percent for lumbar spine disability, status post fusion and laminectomy, are again addressed in the REMAND portion of the decision, below, and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period prior to March 31, 2016, service-connected GERD was manifested by complaints of regular pyrosis and occasional dysphasia, but not by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 2. Beginning March 31, 2016, service-connected GERD has been assigned the highest schedular rating allowable. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent prior to March 31, 2016, and 60 percent beginning on March 31, 2016, for GERD are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code 7346 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The GERD issue on appeal stems from disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, additional notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); VAOPGCPREC 8-2003 (December 22, 2003). Thus, the Veteran has received all required notice in this case for the issue of an increased initial rating for GERD, such that there is no error in the content or timing of notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (providing that an error in notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). In the present case, there has not been an allegation of any error in the notice provided to the Veteran. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All available service treatment records (STRs) and post-service treatment records have been obtained for the issue decided herein. The Veteran was also provided VA examination, which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate service-connected GERD. Most recently, as directed by the January 2016 Board remand, the Veteran was afforded a VA examination in March 2016. The examination is adequate as the examiner reviewed the relevant medical history, considered the Veteran's lay history, and provided opinions with supporting rationale and citation to the evidence. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, there was compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Discussion of the Veteran's July 2012 Board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103 (c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue decided herein was identified at the hearing. The Veteran was asked about the nature and severity of her GERD in accordance with the rating criteria. Based on her testimony, the case was remanded for additional development. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Initial Rating for GERD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The RO has rated the Veteran's service-connected GERD under Diagnostic Code 7346, analogous to hiatal hernia. See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Dysphagia is defined as difficulty in swallowing. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. Veteran has been assigned an initial 10 percent rating prior to March 31, 2016, and a 60 percent rating beginning March 31, 2016, for service-connected GERD. The Board has reviewed all of the evidence in the Veteran's claims file, 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 of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Prior to March 31, 2016 STRs dated from 1982 to 2007 show that the Veteran was seen for various complaints, including hoarseness, GERD, vocal cord chorditis and scratchy throat. In July 2007, the Veteran underwent an outpatient esophagogastroduodenoscopy (EGD) for complaints of esophageal reflux. She reported the onset of her initial problems in 1996 after being on multiple pain medications for back problems. On examination, there was no nausea or vomiting. Acid reflux and a persistent recurrent cough were noted. The Veteran reported having to sleep with the head of the bed elevated; even still, she occasionally awoke with nocturnal reflux. The Veteran also reported that occasionally food seemed to stick in the upper esophageal sphincter area. EGD revealed normal esophagus, stomach and duodenum. During an August 2007 VA general examination, the Veteran reported that she stopped all of her pain medications in January 2007 and this had helped her GERD somewhat. Specifically, she denied vomiting or nausea. She stated that she had never thrown up any blood. She admitted to some nocturnal symptoms with some hot fluid coming back up of her throat without expectorating or vomiting. The Veteran indicated that she attempted to avoid spicy foods. On examination, the Veteran measured 64 inches tall and 145 pounds. Her oropharynx revealed a normal gag reflex and normal speech. The diagnoses included GERD, well-handled at the present time with selective avoidance of certain foods and intermittent medications. Private treatment records dated in 2008 note that the Veteran was taking Nexium. An August 2010 VA outpatient treatment record notes that the Veteran's GERD was controlled with diet. During the July 2012 travel Board hearing, the Veteran testified that she began taking medication for her GERD at the time of her discharge from service. She complained that the symptoms of GERD forced her to avoid foods like citrus and spicy food, and prevented her from eating after 7:00 PM. VA treatment records dated from 2012 to 2014 note the Veteran's ongoing complaints of frequent hoarseness, heartburn and dyspnea, for which several different medications were prescribed. She denied any nausea, vomiting, dysphagia, melena, abdominal pain, or weight loss. In March 2013, her weight was noted to be stable at 165 pounds. A November 2013 outpatient treatment record notes the Veteran's complaints of chronic retrosternal burning sensation and epigastric discomfort as well as intermittent dysphasia. The examiner noted that she had a previous negative EGD and impedance study; therefore, her symptoms were not related to GERD and likely had a psychogenic component. In June 2014 she reported feeling a knot in the epigastric region associated with her GERD symptoms. She reported no improvement of her symptoms with proton pump inhibitor (PPI) therapy. The examiner informed the Veteran that her upper GI symptoms are unlikely related to GERD as she had a comprehensive negative workup and no improvement had been shown in PPI therapy; the likely cause of her symptoms was psychosomatic manifestation. The evidence above suggests that throughout the period at issue, the Veteran's service-connected GERD was manifested by regular, although not persistent, hoarseness and heartburn (pyrosis) and some complaints of occasional dysphasia on two examinations several years apart. There is no indication in the medical evidence or in the Veteran's lay statements that she experienced persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. There were, however, two of these symptoms, pyrosis and dysphasia, occurring in a less severe fashion. Thus, the criteria for a 10 percent rating, but no more, for GERD under Diagnostic Code 7346 are met throughout the period prior to March 31, 2016. A higher rating is not warranted at any point in the appeal period. In this regard, as noted above, there was no weight loss or considerable impairment of health shown at any time. Beginning March 31, 2016 The Veteran underwent a VA examination on March 31, 2016, and reported worsened reflux, constant burning and periodic nausea. For the period beginning March 31, 2016, the Veteran has been assigned a 60 percent rating for her GERD. This is the highest allowable schedular rating for GERD; a rating in excess of 60 percent is not warranted pursuant to Diagnostic Code 7346. Consistent with Hart v. Mansfield, 21 Vet. App. 505 (2007), the application of "staged" ratings have been considered, however, a staged rating is not warranted given that she is receiving the maximum schedular rating available for this period. Accordingly, based on the foregoing, the Board finds that the preponderance of the evidence is against a higher rating than that assigned herein and there is no further doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Extra-Schedular Consideration The Board has also considered the provisions of 38 C.F.R. § 3.321 (b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case, the Board finds that the record does not show that the Veteran's GERD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1). The evidence in this case does not show such an exceptional disability picture that the assigned schedular evaluation for service-connected GERD is inadequate. The Veteran's symptoms of pyrosis, reflux and dysphasia are expressly contemplated by the rating criteria. As such, the Board concludes that referral for extra-schedular consideration is not warranted here. In addition, a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321 (b)(1) is not warranted in this case. ORDER An initial rating in excess of 10 percent prior to March 31, 2016, and 60 percent beginning on March 31, 2016, for GERD is denied. REMAND Further development of the issues of entitlement to higher initial evaluations for service-connected cervical strain and lumbar spine disability, status post fusion and laminectomy is required. In this case, the Veteran was most recently provided orthopedic VA examinations of the low back and neck in January 2015. The Board finds these examinations to be inadequate for rating purposes. Although the VA examiners noted range of motion findings, and the Veteran's complaints of pain, it is not clear whether this was active or passive range of motion, in weight bearing or nonweight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must, wherever possible, include the results of the range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment since January 2015. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. After any additional records are associated with the claims file, obtain a VA examination to evaluate the current severity of her service-connected cervical spine and lumbar spine disabilities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examination must be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the lumbar spine and cervical spine. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joints in question and any paired joint must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims are not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs