Citation Nr: 1800054 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-13 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to February 25, 2014, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel INTRODUCTION The appellant served on active duty with the United States Air Force from June 1992 to December 1996. This case comes before the Board of Veteran's Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, granted service connection for GERD and assigned an initial 10 percent rating, effective November 29, 2010; granted service connection for degenerative arthritis of the lumbar spine and assigned an initial 10 percent rating, effective November 29, 2010; and denied service connection for tinnitus. Jurisdiction of the claim is currently with the Nashville RO. Before the matter was certified to the Board, in an August 2015 rating decision, the RO granted service connection for tinnitus and assigned an initial 10 percent rating, effective November 29, 2010. The award of service connection for tinnitus constitutes a complete grant of the benefit sought on appeal. The record currently available to the Board contains no indication that the appellant has initiated an appeal with the effective date or initial ratings assigned. Thus, those issues are not before the Board. Cf. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Also in the August 2015 rating decision, the RO increased the rating for the appellant's lumbar spine disability to 20 percent, effective February 25, 2014. Although a higher rating has been granted, this issue remains in appellate status, as the maximum available benefit has not been assigned from the effective date of the award of service connection. AB v. Brown, 6 Vet. App. 35, 38 (1993). Finally, in the August 2015 rating decision, the RO granted service connection for neuropathy of the right and left lower extremities and assigned initial 10 percent ratings for each lower extremity, effective February 3, 2015. The record currently available to the Board contains no indication that the appellant has initiated an appeal with the effective date or initial ratings assigned. Thus, those issues are not before the Board. In August 2017, the appellant and his spouse testified at a Board videoconference hearing before the undersigned Veterans Law Judge with respect to the issues set forth on the cover page of this decision. In reviewing the record, the Board notes that during a July 2015 VA physical therapy consultation, the appellant reported that he had sustained a cervical spine injury while on active duty. The appellant and his representative are advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). Thus, if the appellant would like to pursue a claim of service connection for a cervical spine disability, he should do so pursuant to these new requirements. The Board also notes that in August 2017, the appellant submitted an application for a total rating based on individual unemployability, alleging that since October 2007, he has been unable to work due to multiple service-connected disabilities. The record currently available to the Board indicates that the RO is in the process of developing and considering this claim. Thus, the Board does not have jurisdiction over the issue at this juncture. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant contends that his GERD, which is currently rated as 10 percent disabling, and his lumbar spine arthritis, which is rated as 10 percent prior to February 25, 2014, and 29 percent thereafter, should be rated higher. After considering the available record, the Board finds that further development is necessary in order to adjudicate these claims. The appellant was last examined for GERD in June 2011. At that VA examination, it was found that the appellant had a history of symptoms of GERD that included epigastric pain, dysphagia, hiccups, heartburn, scapular pain, reflux, regurgitation of stomach contents, nausea, and vomiting. There was no indication that he had any symptoms of hematemesis (vomiting blood) or melena (bloody stool). In describing the frequency of his symptoms, the examiner recorded that the appellant deals with them constantly, sometimes lasting all day, and other time intermittently. The appellant also indicated that medication has not helped his condition. Subsequent clinical evidence indicates that the appellant sought acute care treatment for the GERD in March 2017 and had further testing done in April 2017. The appellant also testified at his August 2017 hearing that his GERD symptoms have worsened since his last examination in 2011. As such, the Board finds that a new examination is necessary to determine the current level of disability of the appellant's GERD, to include findings on the level of impairment it causes for the appellant and how frequently he experiences symptoms of GERD. The appellant was last examined for his lumbar spine disability in October 2015. At that time, the examiner noted that the appellant had no incapacitating episodes of acute signs and symptoms that required bed rest prescribed by a physician within the prior 12 months. However, the appellant testified at his August 2017 hearing that he received instructions to remain on bed rest as a treatment for his back condition after trips to the ER in 2015. VA treatment records from February and March 2015 indicate that the appellant was given discharge instructions from the ER to "rest" for two weeks as treatment. The appellant has also claimed a worsening of his condition since his last VA examination with increased pain on range of motion. The Board finds that a new examination is necessary in order to ascertain the appellant's current level of disability as a result of his lumbar spine arthritis, as well as any associated neurological findings. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the appellant for an appropriate VA examination to determine the severity of his service-connected GERD. After examining the appellant, taking his medical history, and reviewing the claims file, the examiner should comment on the severity of the appellant's disability. Specifically, the examiner should focus on whether the appellant's GERD symptoms are "persistently recurrent" and "productive of considerable impairment of health." The examiner should also comment on whether the appellant experiences symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptoms productive of severe impairment of health. 2. The RO should schedule the appellant for an appropriate VA examination to determine the severity of his service-connected low back disability. After examining the appellant, taking his medical history, and reviewing the claims file, the examiner should provide an opinion, with supporting rationale, as to the severity of the appellant's disability. The examiner should comment on any functional impairment resulting from flare-ups, painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to the abovementioned factors. The examiner must test the thoracolumbar spine and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 also state whether the appellant's service-connected lumbar spine disability results in incapacitating episodes manifested by physician prescribed bed rest. If so, the examiner should report the dates and durations of these incapacitating episodes. Finally, the examiner should identify any neurological abnormalities associated with the appellant's service-connected low back disability, to include bowel or bladder impairment. 3. After completing the above development, and after conducting any additional development deemed necessary, the RO should review all the evidence of record in readjudicating the appellant's claim. If the appellant's claim remains denied, he and his representative should be provided with a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).