Citation Nr: 1801301 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 09-25 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a hiatal hernia with gastroesophageal reflux disease, as secondary to a service-connected left knee disability. 2. Entitlement to an initial rating in excess of 10 percent for left knee post-traumatic patella femoral pain syndrome with scars. 3. Entitlement to service connection for left knee neuropathic pain. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1986 to January 1995 and from February 2003 to May 2004. The Veteran also had active duty for training (ACDUTRA) from June 6, 1985 to August 10, 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2008 and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In November 2014, the Veteran testified before the undersigned Veterans' Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in January 2015 and March 2016 when it was remanded for additional development. The issue of entitlement to service connection for left knee neuropathic pain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hiatal hernia with gastroesophageal reflux disease (GERD) was not present during service; did not develop as a result of any incident during service; and is not related to or aggravated by a service-connected disability. 2. The Veteran's left knee post-traumatic patella femoral pain syndrome most nearly approximates flexion limited to 80 degrees or better and full extension without dislocated semilunar cartilage, recurrent subluxation, or lateral instability. 3. The Veteran's scars of the left knee measure less than 39 square centimeters (cm); are not painful; and are not unstable. CONCLUSIONS OF LAW 1. Hiatal hernia with GERD was not incurred in or aggravated by active service and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for an initial rating in excess of 10 percent for left knee post-traumatic patella femoral pain syndrome with scars are not met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, 4.118 Diagnostic Codes 5003, 5014, 5299, 5260, 5261, 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Hiatal Hernia with Gastroesophageal Reflux Disease The Veteran contends that service connection is warranted for hiatal hernia with gastroesophageal reflux disease (GERD) because it was caused by service or caused or aggravated beyond its normal progression by medications taken for his service-connected left knee disability. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service' - the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish a right to compensation for a present disability secondary to a service-connected disability, a veteran must demonstrate the existence of (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). The record establishes the first element - a current disability - in multiple VA examinations diagnosing hiatal hernia with GERD. Thus, the first element is met. After review of the evidence, the Board finds that the second element - an in-service injury - is not met. Although the Veteran reported in a May 2014 VA examination that his reflux symptoms began in 1991, the Board finds this statement is not credible because it is contradicted by concurrent records, including service treatment records. There are no service treatment records documenting reflux symptoms. In addition, examinations in June 1991, December 1992, November 1994, and January 1999 all found normal stomach and viscera. Furthermore, the Veteran denied frequent indigestion or trouble with his stomach, liver, or intestines in November 1994 and January 1999 Report of Medical History forms. Finally, in a May 2004 Post-Deployment Health Assessment, the Veteran denied frequent indigestion. Considering this evidence, the Board finds that the Veteran's report of in-service reflux symptoms is not credible, and an in-service injury has not been established. Additionally, even assuming the presence of in-service symptoms, the Board finds that the third element - a nexus between the disability and in-service injury - is not met. First, service treatment records did not document treatment for hiatal hernia or GERD, multiple examinations found no stomach or viscera issues, and the Veteran denied frequent indigestion. Second, the medical opinions of record find no direct relationship between service and the Veteran's hiatal hernia with GERD. A May 2014 VA examination found it less likely than not that the Veteran's hernia with GERD was incurred in or caused by an in-service injury because the Veteran was not evaluated for symptoms associated with GERD in service; the Veteran was not diagnosed with hiatal hernia and GERD until seven years after service concluded; and a hiatal hernia is caused by a mechanical process (the esophagus sliding through an opening at the gastroesophageal junction) and is not related to medications taken by the Veteran. This is supported by August 2011, May 2015, and August 2016 VA examinations as well as an August 2017 VA medical opinion. Accordingly, service connection on a direct basis is not warranted. This does not end the Board's analysis, however, as the Veteran also contends that the hiatal hernia with GERD is a result of medications prescribed for his service-connected left knee disability. Thus, an analysis of secondary service connection is required. As discussed above, the record demonstrates a current disability: hiatal hernia with GERD. Thus the first element is met. In addition, the second element - a service-connected disability - is also met as the Veteran is service-connected for a left knee disability. After considering the evidence, however, the Board finds that the third element - a nexus between the current disability and the service-connected disability - is not met. The Veteran contends that his hiatal hernia with GERD is secondary to medications taken for his left knee disability. The bulk of the medical evidence weighs against a finding that the Veteran's hiatal hernia with GERD is related to the medications he took for his left knee disability. The August 2011 VA examination found it less likely than not that the conditions were caused by medications for the Veteran's knee, finding that the Veteran's reflux was caused by his hiatal hernia, which was not due to medications. A May 2014 VA examination emphasized that the Veteran's hiatal hernia and GERD were not caused or aggravated by the medications because there was no record of in-service treatment for hiatal hernia or GERD; medications do not worsen hiatal hernia because it is a mechanical process; and NSAIDs (nonsteroidal anti-inflammatory drugs) can cause ulceration and bleeding, but the Veteran did not have such symptoms, and NSAIDs were discontinued at the first sign of gastric irritation. The May 2014 VA examination also considered the Veteran's current use of Vicodin, but noted that it does not typically cause GERD symptoms and is not considered to aggravate them beyond their natural progression because it can be discontinued if there are serious side effects. A May 2015 VA opinion similarly found that the Veteran's hernia was less likely than not due to his left knee medications because "A hiatal hernia is an anatomical variant and is not the result of medications, including Lodine." An August 2016 VA examination addendum again stressed that a hiatal hernia is an anatomical condition and is not the result of medications. Finally, an August 2017 VA medical opinion found the Veteran's GERD was not related to or aggravated by the medications taken for left knee disability because "Acid reflux [GERD] is due to spontaneous relaxation of lower esophageal sphincter (LES). Lodine or any other similar NSAIDs do not cause spontaneous relaxation of the sphincter; hence, causality cannot be attributed to this medicine." The Board notes that the Veteran submitted an online article that states a hiatal hernia is "perhaps caused by inflammation and scarring from the reflux or regurgitation of stomach acid" as well as an online article that states the medication omeprazole can have side effects of abdominal pain and nausea. The Veteran also referenced the 2002 Physician's Desk Reference (PDR) at the November 2014 hearing, stating the medication Lodine has side effects of "gas, ulcerations, bleeding, and perforations." The Board finds that the first article is insufficient to link the Veteran's hiatal hernia with the medications prescribed because it states only that inflammation or scarring is "perhaps" a cause of the hernia. As to the second article and the PDR reference, the Board gives greater weight to the VA examinations, which considered the Veteran's specific condition as well as the medications prescribed to determine that there was not a connection. In addition, the Board notes that neither medication listed hiatal hernia or GERD as side effects. Finally, as reported in the May 2014 VA examination, the Veteran did not have symptoms such as ulceration and bleeding. The Board acknowledges that the Veteran's representative stated at the November 2014 hearing that the Veteran had "gas, ulcerations, bleeding, and perforations," but this statement is not supported by the medical record, which includes no documentation of such symptoms. For these reasons, the Board finds that the Veteran's hiatal hernia with GERD is neither directly caused by the Veteran's service nor caused or aggravated beyond its natural progression by medications for service-connected left knee disability. Left Knee Post-Traumatic Patella Femoral Pain Syndrome A 10 percent evaluation was assigned effective December 31, 2007. The Veteran filed a July 2008 notice of disagreement (NOD) appealing this decision. The Veteran contends that a higher rating is warranted as his symptoms are not reflected by the current rating. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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 ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability's severity since the effective date of his award. The Veteran's left knee post-traumatic patella femoral pain syndrome is currently rated as 10 percent disabling by under DC 5299-5014. Diagnostic code 5299 is a "built-up" code number, meaning it represents an unlisted condition. For such DCs, the first two digits are selected from the part of the Rating Schedule that most closely identifies the body part or system involve. The last two digits of the DC are "99" for all unlisted conditions. Additionally, this condition was assigned a hyphenated DC. Hyphenated DCs are used when a rating under one DC determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. Diagnostic code 5299 therefore references an unlisted condition of the musculoskeletal system, in this case, the knee. Diagnostic code 5014 (osteomalacia) rates disabilities using the classifications of DC 5003 (arthritis, degenerative), which provides two rating options for x-ray-established degenerative arthritis. The first is based on limitation of motion (as classified under the DC for the joint involved) objectively confirmed by findings such as swelling, muscle spasm, or painful motion. The second option under DC 5003 applies where there is no limitation of motion; this option allocates either a 10 percent rating if two or more major joints (or minor joint groups) are involved or a 20 percent rating if the criteria for a 10 percent rating are met and there are occasional incapacitating exacerbations. The DCs that rate on the basis of limitation of knee motion are DCs 5260 (leg, limitation of flexion of) and 5261 (leg, limitation of extension of). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals of Veterans Claims has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. With consideration of the DeLuca factors, it is clear that the Veteran's left knee has manifested flexion that is limited, at most, to 80 degrees with full extension. The January 2012 VA examination documented range of motion from 0 to 110 degrees, with objective evidence of painful motion beginning at 80 degrees. The VA examiner found that the Veteran experienced pain and swelling that limited the knee's functional ability, but these factors were considered by the examiner when reporting the knee's range of motion. VA examinations in May 2008, January 2012, July 2014, May 2015, and November 2016 noted functional impairment, and all but the May 2008 examination reported objective evidence of pain. After repetitive use, the January 2012 VA examination found pain on movement and swelling; the July 2014 VA examination found incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, and disturbance of locomotion. The Veteran's left knee has clearly resulted in functional impairment, but the objective medical evidence establishes that this impairment has not resulted in limitation of motion greater than 80 degrees of flexion or less than full extension. The Board therefore finds that the Veteran's left knee manifests flexion that is at most limited to 80 degrees with full extension, even with consideration of all relevant factors. Flexion limited to 80 degrees and full extension is noncompensable under DCs 5260 and 5261. 38 C.F.R. § 4.71a. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. The VA examinations found no evidence of recurrent subluxation. Although the Veteran reported left knee instability at the July 2014 VA examination, submitted a June 2014 employment letter that noted instability in the Veteran's left knee, and submitted an August 2014 private physician letter that reported left knee instability, the Board finds this evidence is outweighed by the objective medical evidence in the VA examinations. VA examinations from January 2012, July 2014, May 2015, and November 2016 all reported no joint instability and normal joint stability tests. The Board gives greater weight to these findings, as they represent the results of objective medical tests rather than unverified and undefined accounts of instability. Furthermore, the Board has considered whether an additional higher rating is warranted for locking of the Veteran's left knee. The Veteran reported at the May 2008 VA examination that his knee locks up "now and then" depending on activity. The Veteran also stated at the July 2014 VA examination that his knee locked in place five to six times per month. Diagnostic code 5258, which references locking of the knee, requires dislocated semilunar cartilage "with frequent episodes of 'locking,' pain, and effusion into the joint." The July 2014, May 2015, and November 2016 VA examinations all found no meniscus or semilunar cartilage conditions, however. Thus, an additional rating is not warranted for locking of the Veteran's knee. The Board must also consider whether a separate rating is appropriate for scarring as separate and distinct manifestations of the service-connected disability contemplated by the ratings above. See 38 C.F.R. § 4.14, Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Scars are rated under 38 C.F.R. § 4.118 for disorders of the skin using DCs 7800 through 7805. The January 2012, July 2014, May 2015, and November 2016 VA examinations identified scars on the Veteran's left knee that are not painful, unstable, or greater than 39 square cm in total area. Thus, the Board finds that a separate rating is not warranted for scarring associated with the service-connected left knee condition under DCs 7800 through 7805. Finally, entitlement to a total disability based on individual unemployability (TDIU) is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable due to his left knee condition. The record indicates that the Veteran is currently employed and works at a desk. The January 2012 VA examination notes that the Veteran's knee pain increases and the knee swells toward the end of the week, causing the Veteran to stay off it on his days off; the July 2014 VA examination also noted that the Veteran missed some time from work due to complications with pain management. There is no evidence that this rises to the level of inability to secure or follow gainful employment, however. Thus, remand of a claim for TDIU is unnecessary as there is no evidence of unemployability due to the left knee condition. ORDER Entitlement to service connection for a hiatal hernia with gastroesophageal reflux disease, to include as secondary to a service-connected left knee disability, is denied. Entitlement to an initial rating in excess of 10 percent for left knee post-traumatic patella femoral pain syndrome with scars is denied. REMAND Remand is necessary to clarify the diagnosis of left knee neuropathic pain in the November 2016 VA examination. The examination indicated that the Veteran had left knee neuropathic pain, "likely due to the serial left knee surgeries." The examination did not identify the impacted nerve; thus, an additional VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician. The clinician should provide a medical opinion, considering the results of the examination, the Veteran's statements regarding symptoms, and all additional evidence in the claims file. The clinician(s) should elicit a full history from the Veteran regarding the onset and progression of his left knee neurological disability. All tests deemed necessary by the clinician(s) must be performed. The clinician must then answer the following questions: a) What is the nature, extent, and severity of the Veteran's left knee neuropathic pain. The specific nerve affected must be identified. b) Is it at least as likely as not (i.e., probability equal to or greater than 50 percent) that any left knee neuropathic disability is related to military service? c) Is it at least as likely as not (i.e., probability equal to or greater than 50 percent) that any left leg neuropathic disability was caused or aggravated (beyond its natural progression) by the Veteran's left knee condition, including surgeries? A full rationale (i.e. basis) for any expressed medical opinions must be provided. 2. Review the record to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. If the benefits are not granted, issue a supplemental statement of the case and provide the appellant and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs