Citation Nr: 1742575 Decision Date: 09/26/17 Archive Date: 10/04/17 DOCKET NO. 12-13 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for lumbar spondylolisthesis with degenerative disc disease (DDD) prior to September 21, 2016, and in excess of 40 percent from September 21, 2016. 2. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) prior to September 21, 2016, and in excess of 30 percent from September 21, 2016. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2003 to August 2010. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. By way of background, the RO granted service connection for the lumbar spondylolisthesis with degenerative disc disease and sciatica, both lower extremities, and GERD, in pertinent part, with an evaluation of 10 percent for each issue effective from August 16, 2010. After a November 2014 Board remand, the RO increased the evaluation for the lumbar spondylolisthesis to 40 percent effective from September 21, 2016, and the evaluation of the GERD to 30 percent effective from September 21, 2016. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claims are still in controversy and on appeal. Id. In March 2017, the RO granted service connection separately for right lower extremity sciatic radiculopathy and left lower extremity sciatic radiculopathy, and recharacterized the Veteran's original lumbar back claim as lumbar spondylolisthesis with degenerative disc disease. That issue has been recharacterized as such on the title page. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The RO denied TDIU in a rating decision dated August 28, 2017, and the Veteran has not appealed this decision. Therefore, the issue of TDIU is not in appellate status and will not be considered here. The Board remanded the issues on appeal for additional development in November 2014. The medical opinions and examinations concerning the issues decided herein having been obtained, the directives have been substantially complied with and the matters are again before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2013, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript was prepared and incorporated into the record. FINDINGS OF FACT 1. Prior to September 21, 2016, the Veteran's lumbar spondylolisthesis disability is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height. 2. From September 21, 2016 forward, the Veteran's lumbar spondylolisthesis disability is manifested by forward flexion of the thoracolumbar spine 30 degrees or less. 3. Prior to September 21, 2016, the Veteran's GERD did manifest in the following symptoms of less severity: persistently recurrent epigastric distress, pyrosis (heartburn), regurgitation, nausea, and vomiting, but was not manifested by hematemesis, substernal or arm or shoulder pain, or other symptoms productive of considerable impairment of health. 4. From September 21, 2016 forward, the Veteran's GERD manifested in persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, shoulder pain, substernal pain, which were productive of considerable impairment of health, but not by material weight loss, melena, moderate anemia, or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. For the period prior to September 21, 2016, the criteria for an initial increased evaluation for lumbar spondylolisthesis in excess of 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5239, 5242 (2016). 2. For the period after September 21, 2016, the criteria for an increased evaluation for lumbar spondylolisthesis in excess of 40 percent have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5239, 5242 (2016). 3. For the period prior to September 21, 2016, the criteria for an initial increased evaluation for the Veteran's service-connected GERD in excess of 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114a, Diagnostic Code 7346 (2016). 4. For the period after September 21, 2016, the criteria for an increased evaluation for the Veteran's service-connected GERD in excess of 30 percent have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.114a, Diagnostic Code 7346 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duty to Notify and Duty to Assist Under applicable criteria, 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 RO has provided notice letters to the Veteran prior to the initial adjudication of the claims. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of her claims to the RO. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in the letter. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's claim for a higher initial evaluation for the lumbar spine disability is a downstream issue, which was initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Therefore, there is no duty to provide additional notice. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of her claims. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. Furthermore, neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of her claims at this time is warranted. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims, and the duty to assist requirements have been satisfied. VA treatment records and private medical records identified by the Veteran are associated with the claims file and the virtual file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. The Veteran underwent VA examinations in June 2010, June 2012, and September 2016 to obtain medical evidence as to the nature and severity of the service-connected lumbar spine disability and her GERD disability. The Board finds that the VA examinations are adequate for adjudication purposes. The examinations were performed by medical professionals based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination reports are fully descriptive, and provide the information necessary to effectively evaluate the Veteran's service-connected disabilities. The Board finds that for these reasons, the Veteran has been afforded adequate examinations. Moreover, neither the Veteran nor her representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 2. Increased Rating Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability. 38 C.F.R. § 4.20. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 3. Lumbar Spondylolisthesis - Law and Analysis The Veteran's lumbar spondylolisthesis with degenerative disc disease is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. According to the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. For VA compensation purposes, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5239, 5242 (2016) (the General Rating Formula for Diseases and Injuries of the Spine is used for conditions which result in symptoms such as pain (with or without radiation), stiffness, or aching of the area of the spine affected by residuals of injury or disease). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, Note (1). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V (2016). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). 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 20 percent disability evaluation is warranted for incapacitating episodes having 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 intervertebral disc syndrome with incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. Finally, a rating of 60 percent is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The criteria direct that intervertebral disc syndrome be evaluated either on the total duration of incapacitating episodes over the past 12 months or under either the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation. For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is 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, Diagnostic Code 5243, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment shall be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (2). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5010. Period Prior to September 21, 2016 The Veteran incurred a back injury during active service in 2003, initially complaining of severe back pain. X-rays indicated lumbar spondylolisthesis, and she was eventually separated from active service specifically because of this lumbar back injury in August 2010. An MRI scan in July of 2008 found grade 1 anterolithesis at L5-S1, with mild disc bulge at L5-S1 causing mild foraminal narrowing right worse than left. The Veteran received her initial VA examination in June 2010. The examiner noted a line of pain radiating from above the belt line down to right lower extremity on occasion. Daily back pain was noted, becoming sharp with movement. Though she wore a back brace, the examiner noted she performed the usual activities of daily living. There had been no surgery, and no evidence of incapacitating episodes in the last year leading up to that examination. This VA examination of the thoracolumbar spine shows forward flexion 0 to 80 out of 90 degrees with moderate discomfort, extension backwards 0 to 30 out of 30 degrees without discomfort, lateral flexion 0 to 30 out of 30 degrees bilaterally without discomfort, and lateral rotation 0 to 30 out of 30 degrees bilaterally without discomfort. Combined range of motion was 230 degrees. There was no objective evidence of spasm, weakness or tenderness. There was evidence of painful motion with forward flexion. The range of motion of the lumbar spine was not additionally affected by pain, fatigue, weakness, lack of endurance or incoordination with repetitive motion. Neurological examination of the upper and lower extremities reveals motor, sensory, and deep tendon reflexes to be intact. The Veteran received another VA examination in June 2012. The Veteran complained of constant low back pain with occasional radiation to the right leg and toes with numbness and tingling, especially when she over-exercises, from bending, prolonged sitting or standing. She was not taking any medications for the lumbar back disability at the time of this examination. The Veteran reported she did not experience flare-ups. The examiner found forward flexion 0 to 70 out of 90 degrees with painful motion, extension backwards 0 to 20 out of 30 degrees without discomfort, lateral flexion 0 to 20 out of 30 degrees bilaterally with discomfort, and lateral rotation 0 to 30 out of 30 degrees bilaterally without discomfort. Combined range of motion was 190 degrees. Localized tenderness was noted on the soft tissue of the thoracolumbar spine, but no guarding or muscle spasm. Intervertebral disc disease of the thoracolumbar spine was noted, but there had been no incapacitating episodes due to intervertebral disc disease over the last 12 months. Imaging studies were accomplished but no arthritis was documented. There was no ankylosis noted. The Veteran received periodic treatment for her lumbar spondylolisthesis at a DOD facility in November 2015. She had presented with complaints of chronic pain that was predominantly on the right side, to include lower back, hip, knee, upper back, and neck, and also said her pain had progressively worsened. The Veteran's physician found forward flexion 0 to 70-80 out of 90 degrees, extension backwards 0 to 30 out of 30 degrees without discomfort, lateral flexion 0 to 30 out of 30 degrees bilaterally, and lateral rotation 0 to 30 out of 30 degrees bilaterally without discomfort. Combined range of motion was 220 degrees. The lumbar paraspinal muscles were noted to be tender. For the period prior to September 21, 2016, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's lumbar spondylolisthesis with degenerative disc disease. The 10 percent evaluation for this period contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees or muscle spasm, guarding or localized tenderness not resulting in abnormal gait, or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Forward flexion was measured at no lower than 70 degrees in this period, and the combined range of motion was no lower than 220 degrees in this period. A higher evaluation requires evidence demonstrating forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 170 degrees less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis reversed lordosis or abnormal kyphosis. Such is not shown by the evidence of record. As such, an evaluation in excess of 10 percent is not supported by record for this period. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome for this period. However, there is no evidence showing that bed rest was prescribed by a physician during this period. Accordingly, a higher evaluation pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2016). See DeLuca, supra. The Board accepts that the Veteran has experienced functional impairment and pain due to her low back disability. The Board also finds the Veteran's own reports of symptomatology to be credible, to include during reported flare-ups and following repetitive use. However, neither the lay nor medical evidence reflects the functional limitation required to warrant the next higher evaluations for this period considered. The Board therefore finds that the currently assigned evaluation for this period is appropriate for the Veteran's lumbar back disability. Period After September 21, 2016 The Veteran received another VA examination in September 2016 for her lumbar back disability. The Veteran complained that her pain and mobility had worsened. The examiner found forward flexion 0 to 10 out of 90 degrees, extension backwards 0 to 10 out of 30 degrees, left lateral flexion 0 to 15 out of 30 degrees, right lateral flexion 0 to 10 out of 30 degrees, and lateral rotation 0 to 20 out of 30 degrees. Combined range of motion was 85 degrees. Painful motion was noted for all range of motion measurements. The Veteran complained of severe pain on palpation of the lower back soft tissue. No guarding or muscle spasm was noted. No ankylosis was noted. Intervertebral disc disease was noted, but there had been no episodes of acute signs and symptoms due to intervertebral disc disease that required bed rest or treatment prescribed by a physician in the last 12 months. For the period after September 21, 2016, the Board finds that an evaluation of the Veteran's lumbar spondylolisthesis with degenerative disc disease in excess of 40 percent is not warranted. The evidence of record in this period shows the Veteran's lumbar spine forward flexion to be limited to 10 degrees. Additionally, the combined range of motion on the most recent examination was 85 degrees. However, the weight of the evidence does not demonstrate that a higher evaluation is warranted. The evidence does not show unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. As such, the Board finds that an evaluation in excess of 40 percent, after September 21, 2016 is not warranted. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc disease. No VA examination for the Veteran's lumbar back disability indicates that any incapacitating episodes occurred in the 12 month period prior to any of the examinations. Accordingly, a higher evaluation pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2016). See DeLuca, supra. The Board also finds the Veteran's own reports of symptomatology to be credible, to include during reported flare-ups and following repetitive use. However, neither the lay nor medical evidence reflects the functional limitation required to warrant the next higher evaluations for the periods considered. The Board therefore finds that a 40 percent evaluation, but not higher, is warranted beginning September 21, 2016. The increased rating to 40 percent is based on an objective decrease in forward flexion not documented prior to September, 2016. Prior treatment records and examination reports document that this objective diminishment was not present earlier. Thus, the Board finds that the weight of the evidence demonstrates that a rating in excess of 10 percent is not warranted prior to September 21, 2016, and a rating in excess of 40 percent is not warranted as of that date. The Board places greater probative value on the objective clinical findings which demonstrate that there was a significant change in range of motion as documented on that date. In this regard, the competent and probative evidence of record does not indicate significant additional functional losses attributed to the Veteran's low back complaints nor are the requisite incapacitating episodes shown. The Board notes that the Veteran has already been granted service-connection for radiculopathy of the right and left lower extremities due to her back disability and no issue regarding the rating for radiculopathy is currently in appellate status. Accordingly, the 10 percent rating prior to September 21, 2016, and the 40 percent rating as of that date, adequately represents any functional impairment attributable to the disability. See 38 C.F.R. §§ 4.41, 4.10 (2016). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation for the Veteran's lumbar spine disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are warranted, as noted in the discussion above. See Hart, 21 Vet. App. at 505. Neither the Veteran nor her representative has raised any other issues concerning the lumbar spine disabilities, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For all the foregoing reasons, the preponderance of the evidence is against an initial increased rating in excess of 10 percent prior to September 21, 2016, and the preponderance of the evidence stands against an increased rating in excess of 40 percent from that date for the lumbar spine disability. 38 C.F.R. § 4.3; Hart v. Mansfield, 21 Vet. App. 505 (2007). 4. GERD - Law and Analysis Service connection for GERD has been evaluated under DC 7346, hernia hiatal. 38 C.F.R. § 4.114. Under Diagnostic Code 7346, a 10 percent rating is warranted when the Veteran has two or more of the symptoms for a 30 percent evaluation, but of less severity. A 30 percent rating is assigned when a hiatal hernia causes persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned when a hiatal hernia causes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Period Before September 21, 2016 The Veteran was diagnosed with GERD while she was still on active duty, and granted service connection with an evaluation of 10 percent effective from August 16, 2010, the day after she separated from active duty. Her service treatment records, commencing in treatment notes from September 2008 forward, show multiple complaints of heartburn, nausea, and abdominal pain. She was treated for the H. Pylori infection and diagnosed with reflux while still on active duty. The Veteran received a VA examination in June 2010, and the examiner noted symptoms of stabbing epigastric pain, heartburn, and indigestion with a frequency of approximately every other day. The Veteran indicated she self-medicates with antacids as needed. There had been no weight loss, anemia, or hospitalizations. The examiner indicated the Veteran's abdomen was normal without tenderness, and confirmed a diagnosis of GERD. The Veteran received another VA examination in June 2012. The examiner diagnosed GERD and noted symptoms of persistently recurrent epigastric distress, pyrosis (heartburn), regurgitation, nausea with periodic episodes of 4 or more per year, and vomiting with periodic episodes of 4 or more per year. There was no esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus noted. The Board has reviewed the probative evidence of record including the Veteran's statements and evidentiary submissions, and finds that the criteria for a higher 30 percent rating under Diagnostic Code 7346 have not been met or more nearly approximated for GERD prior to September 21, 2016, as the Veteran's gastrointestinal disability was not shown to be productive of considerable impairment of health. Prior to September 21, 2016, the record does indicate that the Veteran's GERD was manifested by two or more of the following symptoms associated with epigastric distress: pyrosis (heartburn), regurgitation, nausea with periodic episodes of 4 or more per year, and vomiting with periodic episodes of 4 or more per year. See 38 C.F.R. § 4.114, Diagnostic Code 7346. However, the weight of the evidence demonstrates that her symptoms are of lesser severity than that for a 30 percent rating, given she is stable taking one prescription medication per day with occasional over-the-counter remedies when required. For this period, the Veteran has not contended otherwise. Period After September 21, 2016 The Veteran received a VA examination in September 2016. Again, the examiner confirmed and continued the diagnosis of GERD, and noted the following symptoms: persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, shoulder pain, substernal pain, symptoms productive of considerable impairment of health, and periodic episodes of nausea and vomiting, with 4 or more periods per year. The Veteran did not have any esophageal strictures, spasm, diverticula, or other pertinent physical findings, complications, conditions, signs and/or symptoms related to her GERD. Additional VA treatment records reflect that the Veteran has denied significant unintentional change in weight, outside of her pregnancies in 2012 and 2016, and abdominal examinations reflect that her abdomen has been non-tender. Continuing post-service treatment records from the Department of Defense further indicate that her GERD is stable. Evidence shows that from September 21, 1016, the Veteran's GERD has manifested in persistently recurrent epigastric distress, pyrosis (heartburn and/or reflux), regurgitation, shoulder pain, substernal pain, symptoms productive of considerable impairment of health, and periodic episodes of nausea and vomiting, with 4 or more periods per year. As noted above, a 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, "and" regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Throughout this appeal period, the Veteran's GERD symptoms were controlled by various medications, including Nexium and Zantac. In this case, the VA examiners and DOD treatment reports do specifically indicate the Veteran's symptoms are productive of considerable impairment of health to meet the full requirements of the 30 percent criteria. In light of the Veteran's vomiting and nausea, sleep disturbances, and other symptoms of considerable impairment of health noted, the Veteran's symptomatology approximately equate a considerable impairment of health if she does not take her medication daily or when in stressful situations. Therefore, with consideration of the benefit of the doubt doctrine, the Board finds that her symptoms more nearly approximate those required for a 30 percent evaluation from September 21, 2016, and an increased rating in excess of 30 percent from that date is not warranted. The Board finds that the evidence of the evidence demonstrates that a rating in excess of 30 percent is not warranted. Current symptoms of gastroesophageal reflux disease include persistently recurrent epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, sleep disturbance caused by esophageal reflux, and recurrent nausea and periodic vomiting occurring four or more times per year, with duration of less than a day. The evidence does not reflect material weight loss, hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health to warrant higher disability ratings at any time during the appeal. The Veteran's noted complaints, and, by extension, a lack of other reported symptomatology is of probative value because the Veteran's contemporaneous statements regarding symptomatology were made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1991). Although the Veteran experiences symptoms described above that the Board finds to be productive of considerable impairment of health, the Board also notes that symptoms of material weight loss, hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health are not reported or found. The Board has considered the Veteran's lay assertions regarding severity and finds that the symptoms prior to September 21, 2016 do not support an initial increased rating in excess of 10 percent, and from September 21, 2016 forward, the symptoms do not support an increased rating in excess of 30 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Neither the Veteran nor her representative has raised any other issues concerning the lumbar spine disabilities, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial increased rating for service-connected lumbar spondylolisthesis with degenerative disc disease in excess of 10 percent, prior to September 21, 2016, is denied. Entitlement to an increased rating for service-connected lumbar spondylolisthesis with degenerative disc disease in excess of 40 percent, from September 21, 2016, is denied. Entitlement to an initial increased rating for service-connected gastroesophageal reflux disease (GERD) in excess of 10 percent, prior to September 21, 2016, is denied. Entitlement to an increased rating in excess of 30 percent for service-connected GERD, from September 21, 2016, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs