Citation Nr: 1757596 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 17-25 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for gastroesophageal reflux disease with history of duodenal ulcer prior to January 28, 2016, and in excess of 10 percent thereafter. 2. Entitlement to an initial compensable rating for stress fracture of the left tibia. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1984 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for stress fracture of the left tibia with a noncompensable evaluation effective December 19, 2012 and service connection for gastroesophageal reflux disease with a history of duodenal ulcer with a noncompensable rating effective December 19, 2012. An April 2017 rating decision increased the Veteran's rating for gastroesophageal reflux disease with a history of duodenal ulcer to 10 percent effective January 28, 2016. In September 2017, the Veteran testified at a video-conference hearing before the undersigned Veteran's Law Judge (VLJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an increased rating for stress fracture of the left tibia and entitlement to TDIU due to service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's gastroesophageal reflux disease with history of duodenal ulcer has been manifested by pyrosis; regurgitation; and substernal or arm or shoulder pain. 2. The Veteran's stress fracture of the left tibia is productive of at least slight instability. 3. The Veteran's stress fracture of the left tibia is manifested by painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for gastroesophageal reflux disease with history of duodenal ulcer have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Codes (DCs) 7305, 7346 (2017). 2. The criteria for an initial rating of at least 10 percent for stress fracture of the left tibia for instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2017). 3. The criteria for the assignment of a separate rating of at least 10 percent for left knee limitation of motion are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5256-5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C.A. § 1155 (2016); 38 C.F.R. §§ 3.321(a), 4.1 (2016). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Where the evidence contains factual findings that demonstrate 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. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). I. Gastroesophageal reflux disease with a history of duodenal ulcer The Veteran contends that a higher rating is warranted for his service-connected gastroesophageal reflux disease with a history of duodenal ulcer. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Thus, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System" do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113. The Schedule of Ratings-Digestive System directs that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's gastroesophageal reflux disease with a history of duodenal ulcer is currently evaluated as noncompensable prior to January 28, 2016 and 10 percent thereafter under DC 7399-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27 (2017). The hyphenated diagnostic code in this case indicates that an unlisted disease of the digestive system, under Diagnostic Code 7399, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected disease of the digestive system is rated by analogy) is hiatal hernia, which is evaluated under 38 C.F.R. § 4.114, DC 7346. Under Diagnostic Code 7346, a 10 percent rating is assigned for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. The next higher rating of 30 percent is provided for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum rating of 60 percent is authorized for hiatal hernia with 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. At the December 2013 VA examination, the Veteran reported symptoms of abdominal pain at last monthly, mild nausea four or more times per year, and pyrosis. At the January 2016 VA examination, the Veteran reported persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbance caused by esophageal reflux, nausea, and vomiting. At the January 2017 Board hearing, the Veteran testified that since 2013, he had bad reflux with acid coming into his throat, burning in his esophagus in the middle of the night, difficulty swallowing at times when trying to eat, vomiting at least twice a week, and regurgitation. Even with medication, he testified that he experienced heartburn and vomiting. He also testified that he experienced pain in his right and left shoulders. Resolving all reasonable doubt in the Veteran's favor, the Veteran's symptoms warrant a 30 percent rating under DC 7346. A higher rating is not warranted under DC 7346. Although there is evidence of pain and vomiting; there is no evidence of material weight loss and hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The January 2016 VA examiner indicated the Veteran's esophageal conditions have no impact on his ability to work. See December 2013 and January VA examinations; VA treatment records through February 2017; private treatment records from the Cleveland Clinic Foundation. The Board also considered whether a higher evaluation is warranted under DC 7305, which applies to a duodenal ulcer. However, a higher rating is not warranted under DC 7305 because the evidence does not show impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. See December 2013 and January VA examinations; VA treatment records through February 2017; private treatment records from the Cleveland Clinic Foundation. The Board has considered evaluating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds no applicable one that would avail the Veteran of a higher disability rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Accordingly, a rating in excess of 30 percent for gastroesophageal reflux disease with a history of duodenal ulcer is not warranted. II. Stress fracture of the left tibia The Veteran contends that a higher rating is warranted for his service-connected stress fracture of the left tibia, which is currently each rated noncompensable under DC 5257 for instability. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that a rating of at least 10 percent is warranted for instability and a separate rating of at least 10 percent is warranted for painful motion. 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 United States Court of Appeals for Veterans Claims (Court) 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, 1 Vet. App. at 592. 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. The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. DC 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at the angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides for a 10 percent disabling for a slight impairment; a 20 percent disabling for a moderate impairment; and a 30 percent disabling for a severe impairment. Under DC 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5259. Under DC 5260, which evaluates limitation of flexion, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, which evaluates limitation of extension, a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. DCs 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively. Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258-9) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. A. Instability At the September 2017 VA examination, the Veteran reported instability of the left knee, that he has fallen twice, and wears a knee brace. See September 2017 Board hearing transcript, pp. 5-6, 8. However, upon testing, the December 2013 and January 2016 VA examinations show no instability. Resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran has instability of the left knee that is at least slight in severity. Accordingly, a rating of at least 10 percent for stress fracture of the left tibia is warranted under SC 5257. B. Painful motion The Board finds that a separate rating of at least 10 percent is warranted for limitation of motion of stress fracture of the left tibia throughout the appeal period. Where a Veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Additionally, the United States Court of Appeals for Veterans Claims (the Court) recently held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Id. In this case, the evidence shows the Veteran reported that his for stress fracture of the left tibia has been manifest by painful motion throughout the appeal period. See December 2013 and January 2016 VA examinations and September 2017 Board hearing transcript, p. 10. Thus, in light of the holding of Southall-Norman, the Board finds that a separate rating of at least 10 percent is warranted for painful motion of stress fracture of the left tibia. ORDER Subject to the law and regulations governing payment of monetary benefits, a rating of 30 percent for gastroesophageal reflux disease with a history of duodenal ulcer is granted throughout the appeal period. Subject to the law and regulations governing payment of monetary benefits, a rating of 10 percent for instability due to stress fracture of the left tibia is granted. Subject to the law and regulations governing payment of monetary benefits, a rating of 10 percent for painful motion due to stress fracture of the left tibia is granted. REMAND I. Stress fracture of the left tibia The Veteran was last examined by the VA for his left knee and lower leg conditions in January 2016. At the Veteran's September 2017 Board hearing, the Veteran testified that his disability had worsened. Since the Veteran's January 2016 VA examination for his left knee and lower leg conditions, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In light of the Veteran's testimony that his condition worsened and the decisions cited above, a contemporaneous VA examination is needed to properly assess the current severity of the Veteran's stress fracture of the left tibia. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. TDIU At the September 2017 Board hearing, the Veteran testified that he was not working due to his service-connected disabilities and that he last worked one and one half to two years ago. See September 2017 Board hearing transcript, pp. 2 and 10. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ should request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain more information regarding the Veteran's current employment status, work history, and education. Additionally, a VA examination is necessary to address whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (2017). As the Veteran's claim for an increased rating for stress fracture of the left tibia is being remanded, his TDIU claim, which is inextricably intertwined, must likewise be remanded. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). On remand, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received related to his stress fracture of the left tibia and TDIU claims and take appropriate measures to obtain those records. The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his stress fracture of the left tibia disability and TDIU claims. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. 2. Request that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his stress fracture of the left tibia symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his stress fracture of the left tibia. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should identify all left knee conditions found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Then readjudicate the appeal. If any benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs