Citation Nr: 1801451 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 09-03 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right trapezius strain. 2. Entitlement to service connection for a right elbow disorder. 3. Entitlement to an initial rating in excess of 10 percent for cervical spine degenerative disc disease from December 14, 2006 to October 29, 2009; from May 1, 2010 to February 11, 2016; and, from May 1, 2016 onward. 4. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1987 to January 1992, and from September 2002 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that rating decision, the RO denied service connection for a right shoulder disorder; denied service connection for a right elbow disorder; granted service connection for a cervical spine disorder, assigning a 10 percent rating; and, granted service connection for GERD, assigning a noncompensable rating. The Veteran timely appealed. During the pendency of this appeal, the RO granted a temporary total rating for the cervical spine disorder. When the Veteran had neck surgery in October 2009 and required a period of convalescence, the rating was temporarily increased to 100 percent from October 29, 2009 to May 1, 2010. Similarly, when the Veteran had surgery a second time and required a period of convalescence, the rating was temporarily increased to 100 percent from February 11, 2016 to May 1, 2016. Since the rating during these specified periods of time was a full grant of the benefits sought, the Board will not address the rating assigned during these two time periods. Thus, as it relates to the Veteran's cervical spine disorder, there are three distinct time periods on appeal, from December 14, 2006 to October 29, 2009; from May 1, 2010 to February 11, 2016; and, from May 1, 2016 onward. The Board will address the first two periods in its decision below. However, the third period on appeal, from May 1, 2016 onward, is REMANDED to the Agency of Original Jurisdiction (AOJ). Also during the pendency of this appeal, the RO granted an increased initial rating for GERD. In a June 2010 Supplemental Statement of the Case (SSOC), the RO increased the noncompensable rating for GERD to 10 percent effective December 14, 2006 (the date the claim was filed). In November 2012, when this appeal first came to the attention of the Board, the Board remanded the issues for further development. In October 2016, when this appeal returned to the Board for appellate review, the Board again remanded for further development. The directed development has been completed, and the appeal has now been returned to the Board for further action. The Board will proceed with adjudication of all claims noted above, with the exception of the issue of entitlement to service connection for a cervical spine disability from May 1, 2016 onward. The issue for that specific time period is REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The Veteran's right trapezius strain is etiologically related to an in-service injury, event or disease. 2. The Veteran's right elbow has no diagnosed disability other than the already service-connected radiculopathy, right upper extremity. 3. From December 14, 2006 to October 29, 2009, the Veteran's service connected cervical spine disability was manifested by subjective complaints of pain and forward flexion of 40 degrees; but no ankylosis was shown, and the Veteran did not experience incapacitating episodes of at least two weeks in any 12-month period. 4. From May 1, 2010 to February 11, 2016, the Veteran's service connected cervical spine disability has been manifested by subjective complaints of pain and forward flexion of 35 degrees; but no ankylosis was shown, and the Veteran did not experience incapacitating episodes of at least two weeks in any 12-month period. 5. For the entire appeal period, the Veteran's GERD results in complaints of heartburn and reflux (which appear to be controlled with medication) and occasional substernal, arm, or shoulder pain; however, there is no evidence of dysphagia, hematemesis, melena, anemia or malnutrition; and, no evidence that the Veteran's symptoms are productive of considerable or severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for service connection for a right trapezius strain have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a right elbow disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met for the period of December 14, 2006 to October 29, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243 (2017). 4. The criteria for a disability rating in excess of 10 percent for a cervical spine disability have not been met for the period of May 1, 2010 to February 11, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243 (2017). 5. The criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.113, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO sent correspondence throughout the appeals process, but specifically in January 2007 that informed the Veteran of what evidence was needed to establish the benefit sought, of what VA would do or had done, and of what evidence the Veteran should provide. In addition, the letter informed the Veteran of how disability ratings and effective dates are assigned. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim, with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefits sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's claim file contains such records. In addition, VA examinations were conducted in September 2007, December 2008, December 2009, June 2010, May 2011, June 2013, and January 2017, with an addendum opinion added in May 2017. Based on the submission of the medical records, coupled with the VA examinations, the Board finds that there has been substantial compliance with its November 2012 and October 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand.) As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. Consequently, the duty to notify and assist has been satisfied as to the claims now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Therefore, in light of the foregoing, the Board will proceed to adjudicate the claims based on the evidence of record consistent with 38 C.F.R. § 3.655 (2017). II. Legal Criteria & Analysis - Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Right Trapezius Strain The Veteran seeks service connection for a right shoulder disorder. (The Veteran is separately service connected for right upper extremity radiculopathy.) Service treatment records of the Veteran were reviewed by the Board. An April 2003 record from Dewitt Army Community Hospital reflects the Veteran complained of right sided neck pain that radiates to his right shoulder. The Veteran was diagnosed with a right sided trapezius strain and the recommended treatment was physical therapy and flexeril. An August 2003 record reflects the Veteran complained of chronic pain in the right shoulder and neck. It was noted the Veteran had tenderness in the right trapezius muscle beginning at C-6. The Veteran was diagnosed with right trapezius spasm. Post service treatment records were also reviewed by the Board. An August 2003 record from Greenway HealthCare reflects the Veteran was a new patient with complaint of neck and shoulder pain. He was diagnosed with right trapezius spasm. A September 2003 record reflects the Veteran complained of chronic right shoulder pain and underwent a MRI scan of his cervical spine. The MRI revealed a mild disc bulge at the C3-4 level and a right lateral disc protusion at the C5-6 level which is impinging the cord on the right side. No other abnormalities were seen. The Veteran was diagnosed with cervical disc disease with cord compression. A September 2005 National Guard physical examination report notes that the Veteran's upper extremities were clinically abnormal with tenderness over the lateral elbow and with range of motion of the right shoulder. It was determined that the Veteran was not fit for duty for reasons that included chronic right shoulder pain. A January 2006 Department of the Army memo reflects the Veteran started having severe pain in his neck and shoulders in November 2003. He went to the doctor and was diagnosed with inflammation and given medication but the pain did not go away. A September 2006 hospital outpatient treatment record notes that the Veteran reported right elbow pain as well as pain in the right shoulder radiating down the arm. A November 2006 National Guard medical evaluation report notes mild tenderness to the right trapezius muscle. A March 2010 VA treatment record notes that the Veteran reported a history of chronic neck and right shoulder pain since November 2002. A VA examination was conducted at the Salisbury VAMC in September 2007 for the Veteran's cervical spine, but it notes the Veteran's complaints of shoulder pain. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. Similarly, a VA examination was conducted at the Salisbury VAMC in December 2009 for the Veteran's cervical spine, but it also notes the Veteran's complaints of shoulder pain. The examiner diagnosed the Veteran with DJD of the cervical spine. A VA examination was conducted at the Salisbury VAMC in June 2010 for the Veteran's cervical spine. The examiner noted the Veteran had spinal surgery, but he is again developing right arm pain. The examiner diagnosed the Veteran with post-operative cervical spine fusion of 3 vertebrae and right sided radiculopathy. A VA examination was conducted at the Salisbury VAMC in June 2013 for the Veteran's cervical spine, and it also notes the Veteran's complaints of daily pain radiating from the neck to the shoulder. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. A VA examination was conducted in January 2017 at the Salisbury VAMC. In the written report, the examiner indicated she interviewed and examined the Veteran, and also reviewed the Veteran's records. The examiner opined that it is at least as likely as not the Veteran's current right shoulder disorder is due to his military service. In an addendum report dated in May 2017, the examiner again opined that the Veteran's right shoulder disability is at least as likely as not related to his military service. As rationale, the examiner noted the continuous reports of shoulder pain since service; the MRI and its findings; negative trauma; the diagnosis of trapezius strain right side; and the use of physical therapy. Based upon the review of the service treatment records, the post service treatment records, and the multiple VA examinations discussed above, the Board finds that the criteria for establishing service connection for a right trapezius strain have been met. The Veteran has established a current diagnosis of a right trapezius strain, and his service and post treatment records document multiple complaints of a right shoulder disorder, dating back to service. Further, the evidence of record, including the January 2017 VA examination and the May 2017 addendum, establishes an etiological relationship between his in-service right shoulder pain and his current diagnosis of right trapezius strain. After consideration of the entire record and the relevant law, the Board thus finds that competent, credible, and probative evidence establishes that the Veteran's right trapezius strain is etiologically related to his active service. Right Elbow Disorder The Veteran seeks service connection for a right elbow disorder. Service treatment records of the Veteran were reviewed by the Board. A complaint of right elbow pain was noted in an April 2003 service treatment record. Post service treatment records were also reviewed by the Board. A September 2003 record reflects the Veteran complained of chronic right shoulder and arm pain and underwent a MRI scan of his cervical spine. The MRI revealed a mild disc bulge at the C3-4 level and a right lateral disc protrusion at the C5-6 level which is impinging the cord on the right side. No other abnormalities were seen. The Veteran was diagnosed with cervical disc disease with cord compression. No diagnosis was given specifically for the Veteran's right elbow. A September 2005 National Guard physical examination report notes that the Veteran's upper extremities were clinically abnormal with tenderness over the lateral elbow and with range of motion of the right shoulder. It was determined that the Veteran was not fit for duty for reasons that included chronic right elbow pain. September 2005 x-rays of the right elbow revealed a 5 mm fragmented enthesophyte [bony projection] of the posterior aspect of the elbow. A September 2006 hospital outpatient treatment record notes that the Veteran reported right elbow pain as well as pain in the right shoulder radiating down the arm. A VA examination was conducted in January 2017 at the Salisbury VAMC. In the written report, the examiner indicated she interviewed and examined the Veteran, and also reviewed the Veteran's records. Range of motion for the right elbow was normal. There was no evidence of pain with weight bearing. Muscle strength was normal. There was no ankylosis. The diagnosis for the right elbow was cervical radiculopathy; upper extremity. In an addendum report dated in May 2017, the examiner clarified that "the Veteran's diagnosis of upper right extremity radiculopathy, cervical spine, does account for the Veteran's elbow disorder," as the nerves involved with the elbow include the median, ulnar and radial. This finding makes clear the Veteran's elbow pain was already considered and included in his diagnosis of radiculopathy of the upper right extremity, for which the Veteran is already service-connected. In light of the medical evidence of record, particularly the May 2017 medical opinion that the Veteran's upper right extremity radiculopathy accounts for his right elbow pain, the Veteran's claim for service connection for a right elbow disorder must be denied. There is simply no diagnosed right elbow disorder present in the record apart from the already service-connected radiculopathy, to which the May 2017 VA examiner clearly attributed all the Veteran's right elbow complaints. To grant the claim for right elbow pain as both radiculopathy, right upper extremity, and separately as a right elbow disorder would be considered "pyramiding," which is impermissible under law and regulation. See 38 C.F.R. §4.14 (evaluation of the same disability under various diagnoses is to be avoided.) Thus, the claim for service connection for a right elbow disorder must be denied. II. Legal Criteria & Analysis - Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for any increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cervical Spine Here, the Veteran seeks an initial rating in excess of 10 percent for cervical spine degenerative disc disease. The 10 percent rating is assigned from the date of claim, December 14, 2006, until the present, with the exception of two periods of time in which the rating was temporarily increased to 100 percent due to surgery and convalescence. As such, the Veteran seeks an initial rating in excess of 10 percent for cervical spine degenerative disc disease from December 14, 2006 to October 29, 2009; from May 1, 2010 to February 11, 2016; and, from May 1, 2016 onward. Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under this General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; 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. A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, verterbral body fracture with loss of 50 percent or more of the height. Following the criteria, Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The Veteran's medical records from the Winston Salem VAOPC are associated with the Veteran's claim file. An October 2005 MRI of the Veteran's cervical spine reflects multilevel moderate disc disease. No ankylosis was noted. In September 2007, a VA examination of the Veteran's spine was conducted. The examiner noted the Veteran complained of constant neck pain since his military service. Forward flexion was measured to 45 degrees. No ankylosis was noted. No severe incapacitating episodes were noted, but the Veteran reported missing work on occasion as an auto mechanic due to the pain. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. In December 2008, the Veteran was examined at the Salisbury VAMC after complaining of severe neck pain. Forward flexion was measured to 40 degrees. No postural abnormalities were noted. No ankylosis was noted. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine, multilevel spondylitic degeneration and disc protrusion at C5-C6. In December 2009, a VA examination of the Veteran's spine was conducted. At the time of the examination, the Veteran was 1 month post cervical spine surgery (decompression and fusion of C5/6 and C6/7). Forward flexion was not measured as the Veteran was only 3 weeks post surgery. However, there was no ankylosis and no abnormality of the cervical spine noted. In June 2010, a VA examination of the Veteran's spine was conducted at the Salisbury VAMC. Forward flexion was measured to 45 degrees. No ankylosis was noted. Gait was normal. There was no scoliosis, reverse lordosis, or kyphosis. There were no incapacitating episodes. In May 2011, the Veteran underwent a general medical examination at the Salisbury VAMC. The Veteran reported that after neck surgery, he had neck discomfort radiating into the left forearm. He reported taking medication as prescribed, but that he had run out of medication 6 months ago. Forward flexion was measured to 45 degrees. No ankylosis was noted. Gait was normal. In June 2013, a VA examination of the Veteran's spine was conducted at the Salisbury VAMC. Forward flexion was measured to 35 degrees. No ankylosis was noted. Gait was normal. Upon review of the relevant medical and lay evidence for the first of the three time periods on appeal (December 14, 2006 to October 29, 2009), the Board finds that the Veteran's symptoms are consistent with the 10 percent rating currently assigned, based on the degree of forward flexion and the lack of ankylosis. To obtain a higher rating for the Veteran's spine disability, it is necessary to show forward flexion of the cervical spine 30 degrees or less; abnormal gait; or, ankylosis. For this period, however, the Veteran's forward flexion was no worse than 40 degrees; and no abnormal gait or ankylosis was noted. Thus, a rating higher than the 10 percent currently assigned is not warranted. Upon review of the relevant medical and lay evidence for the second of the three time periods on appeal (May 1, 2010 to February 11, 2016), the Board finds that the Veteran's symptoms are consistent with the 10 percent rating currently assigned, based on the degree of forward flexion and the lack of ankylosis. To obtain a higher rating for the Veteran's spine disability, it is necessary to show forward flexion of the cervical spine 30 degrees or less; abnormal gait; or, ankylosis. Here, for this period, the Veteran's forward flexion was no worse than 35 degrees; and no abnormal gait or ankylosis was noted. Thus, a rating higher than the 10 percent currently assigned is not warranted. There is no evidence that the Veteran experienced incapacitating episodes of at least 2 weeks duration during any of the periods on appeal, as the Veteran was granted temporary 100 percent ratings for the surgery and convalescence. Thus, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's cervical spine disability at any point. Further, with regard to objective neurological abnormalities associated with the Veteran's spine disability, the Board notes that the Veteran is separately service connected for radiculopathy of the left and right upper extremities associated with degenerative disc disease of the cervical spine. Accordingly, a separate rating based on objective neurological abnormalities is not warranted at any time during the period on appeal. GERD The Veteran seeks an initial rating in excess of 10 percent for GERD. Under Diagnostic Code 7346, a 60 percent disability rating is warranted for a 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. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity. The Veteran's medical records from the Winston Salem VAOPC are associated with the Veteran's claim file. An August 2006 record reflects the Veteran sought enrollment in the primary care clinic, and reported a history of GERD, among other issues. An October 2006 record reflects the Veteran had a history of GERD dating back to 1998, and that an esophagogastroduodenoscopy (EGD) was normal in 2001. In September 2007, a VA examination of the Veteran's digestive conditions was conducted. The examiner noted the Veteran reported a history of epigastric and retrosternal burning, an endoscopic examination that showed evidence of esophagitis, and treatment with medication (Aciphex). Upon examination, it was noted the Veteran complained of some retrosternal pain, heartburn, epigastric distress, and some reflux at night which has been alleviated with medication. The Veteran did not report having dysphagia, hematemesis, or melena. The examiner noted that the Veteran's symptoms had no effect on his occupation or activities of daily living, and that the Veteran's general state of health is that the Veteran was a well-developed, well-nourished male in good nutritional status. In December 2008, another VA examination of the Veteran's digestive conditions was conducted. The examiner noted the Veteran reported symptoms of nausea, reflux, and nocturnal heartburn. The Veteran reported further that as long as he takes his medication, the symptoms are controlled. The Veteran did not report having dysphagia, hematemesis, melena, or regurgitation. The examiner reported that the Veteran's overall general health was good. Medical records from the Salisbury VAMC are associated with the Veteran's claim's file. A July 2009 endoscopy consult note reflects the Veteran reported a history of GERD with symptoms of episodic regurgitation that have been resolved with medication. However, on this day, the Veteran complained of epigastric to substernal pain. He denied radiation, nausea, and diaphoresis related to his pain. In May 2011, the Veteran underwent a general medical examination at the Salisbury VAMC. As it relates to GERD, the Veteran did not have any symptoms at the time of this examination. In June 2013, the Veteran underwent a VA examination for esophageal conditions at the Salisbury VAMC. The Veteran reported symptoms of heartburn and substernal arm or shoulder pain. The Veteran did not report having anemia, weight loss, nausea, vomiting, hematemesis, or melena. The examiner noted that the Veteran's esophageal conditions had no functional impact on his ability to work. In January 2017, the Veteran underwent a VA examination at the Salisbury VAMC. As it relates to GERD, it appears this examination focused upon whether the Veteran's allergies were a result of GERD as there was no listing of the Veteran's reported GERD symptoms, if any. The Board finds that a rating in excess of 10 percent is not warranted. The evidence shows that the Veteran has repeatedly complained of such symptoms as heartburn and reflux (which appear to be controlled with medication) and occasional substernal, arm, or shoulder pain. There is no evidence of such symptoms as dysphagia, hematemesis, melena, anemia or malnutrition. There is no medical evidence to show that his symptoms are productive of a considerable or severe impairment of health. The VA examiners have all concluded that the Veteran's esophageal condition does not impact his ability to work. Based on the foregoing, the Board finds that the evidence is insufficient to show that the Veteran's disability is manifested by a 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 to warrant a 60 percent rating; or, that the Veteran's disability is manifested by persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health to warrant a 30 percent rating. Accordingly, the Board finds that the criteria for a rating in excess of 10 percent under DC 7346 have not been met, and that the claim must be denied. ORDER Service connection for a right trapezius strain is granted. Service connection for a right elbow disorder is denied. An initial disability rating in excess of 10 percent for cervical spine degenerative disc disease from December 14, 2006 to October 29, 2009, and from May 1, 2010 to February 11, 2016, is denied. An initial rating in excess of 10 percent for GERD is denied. REMAND The Board finds that additional development is warranted in this case before a decision may be rendered on the Veteran's claim for an increased rating for his cervical spine disability for the third period on appeal, from May 1, 2016 onward. (The two prior periods on appeal for this issue are addressed in the decision above.) In January 2017, the Veteran underwent a VA examination at the Salisbury VAMC. The examiner stated in her written report: "less movement than normal due to ankylosis, adhesions, etc.," but no further comment was made as to whether the ankylosis was favorable or unfavorable. Likewise, ankylosis was not addressed in the May 2017 addendum report. Because the higher ratings for a cervical spine disability depend on whether or not there is ankylosis present, and whether the ankylosis is favorable or unfavorable, a new VA examination is needed to clarify this issue. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a new VA examination of his cervical spine. The examiner must clearly address whether ankylosis is present, and if so, whether it is favorable or unfavorable. In addition, the examiner must test the forward flexion of the Veteran's cervical spine. If the Veteran cannot or will not do range of motion testing, the examiner should estimate forward flexion. The examiner must provide a comprehensive report, including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Then, readjudicate the Veteran's claim of entitlement to an increased rating for his cervical spine disorder from May 1, 2016, onward. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs