Citation Nr: 1802949 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 07-24 266A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Entitlement to an initial rating in excess of 20 percent for right shoulder bursitis with history of torn rotator cuff, arm numbness, and tendonitis. 3. Entitlement to an initial rating in excess of 20 percent for thoracolumbar back strain with lumbar spondylosis. 4. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity. 5. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity. 6. Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD) with duodenitis and history of peptic ulcer disease, gastritis, and indigestion. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife. ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Air Force from August 1996 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran's claims file has since been transferred to the RO in North Little Rock, Arkansas. In September 2016, the Board granted a disability rating of 30 percent, but no higher, for the Veteran's service-connected GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion. In September 2017, the Board vacated its September 2016 decision on the basis that the Veteran never received notification of a videoconference hearing that had been scheduled. The Veteran's hearing was rescheduled, and in October 2017, he testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board previously remanded this case for additional development in May 2011. It is now again before the Board for appellate consideration. A review of the Veteran's claims file reveals that VA-generated evidence related to the Veteran's claim on appeal has been associated with the file subsequent to certification of the issue to the Board. However, the Board observes that the evidence contains no pertinent, non-duplicative findings; therefore, there is no prejudice to the Veteran in adjudicating the matter on appeal. 38 C.F.R. §§ 19.37 (a), 20.1304 (c). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO for further development. FINDINGS OF FACT 1. During his October 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wanted to withdraw his appeal for service connection for a bilateral hip disorder, as well as his appeals for increased evaluations for right shoulder bursitis, thoracolumbar back strain, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. 2. The competent and credible evidence shows that prior to September 7, 2017, the Veteran's GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion was manifested by chronic epigastric distress with dysphagia, pyrosis, regurgitation, and chest discomfort with associated symptoms involving the shoulder blades but not productive of severe impairment of health. 3. The competent and credible evidence shows that as of September 7, 2017, the Veteran's GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion has been manifested by symptoms of pain, vomiting, material weight loss, and melena, productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a bilateral hip disorder, as well as the appeals for increased evaluations for right shoulder bursitis, thoracolumbar back strain, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. For the period prior to September 7, 2017, the criteria for a disability rating in excess of 30 percent for GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346 (2017). 3. Starting September 7, 2017, the criteria for a disability rating of 60 percent, but not higher, for GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA must comply with its duties to notify and assist. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). Proper notice 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. 38 C.F.R. § 3.159 (b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, neither the Veteran nor his representative have raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes obtaining relevant records in the custody of a Federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1). VA will also provide a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). This case was previously remanded for further development in May 2011. As a matter of law, the Board has a duty to ensure substantial compliance with the terms of its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 147 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In accordance with the remand instructions, the Veteran was afforded a new VA examination for his GERD, and the issue was adjudicated in a subsequent SSOC. After considering the prior remand and the development conducted, the Board finds that substantial compliance with the prior remand has been accomplished. Therefore, the Board may proceed with adjudicating the Veteran's claim of entitlement to an increased rating for his bilateral foot disability without prejudice to him. II. Legal Analysis-Withdrawn Issues Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, during his October 2017 Board hearing, the Veteran withdrew his appeal for entitlement to service connection for a bilateral hip disorder, as well as his appeals for increased evaluations for right shoulder bursitis, thoracolumbar back strain, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity. Accordingly, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. The Board does not have jurisdiction to review these issues, and they are dismissed. III. Legal Analysis-Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching a decision on this matter, the Board has reviewed all of the evidence in the claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104 (d)(1); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence in exhaustive detail. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In an October 2005 rating decision, the RO granted service connection for GERD with duodenitis and history of peptic ulcer disease, gastritis and indigestion and assigned a disability rating of 10 percent effective May 21, 2005. In an April 2017 rating decision, the RO increased the Veteran's disability rating to 30 percent, effective May 21, 2005. The Veteran's disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted when there are 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. Period prior to September 7, 2017 The Veteran was afforded a VA examination in July 2005. He reported constant pain in his stomach from acid reflux and indicated that he took medication on a daily basis to control his symptoms. Examination revealed diffused abdominal tenderness that was worse in the epigastric area. VA treatment notes from 2006-2013 indicate the Veteran regularly took medication to control his GERD symptoms. However, during that time, the Veteran consistently denied experiencing abdominal pain, nausea, vomiting, diarrhea, constipation, melena, hematochezia, or hematemesis. In December 2013, the Veteran was afforded a VA examination, during which he reported chronic heartburn with dyspepsia symptoms, as well as reflux and regurgitation symptoms "several times a week." He also reported occasional mild dysphagia. The Veteran stated he experienced chronic epigastric discomfort with burning/gnawing, as well as occasional chest discomfort and associated symptoms involving the shoulder blades. He reported frequent sleep disturbances associated with reflux symptoms, but no nausea, vomiting, or hematemesis. The Veteran also indicated he suffered from diarrhea, as well as diffuse abdominal cramping, bloating, and distention with gas. The examiner reported no bright red blood per rectum or melena, nor any ongoing anemia, weight changes, or malnutrition. The Veteran had not undergone abdominal surgery, but he continued to take medication for his symptoms at least every other day. In a December 2014 VA treatment note, the Veteran denied symptoms of chest pain, dysphagia, or vomiting. In a March 2015 VA treatment note, the Veteran denied symptoms of gastrointestinal pain, nausea, vomiting, diarrhea, or hematochezia. In a February 2016 VA treatment note indicates that the Veteran was seen in December 2015 for vomiting blood status post esophagogastroduodenoscopy (EGD). However, the treatment note indicated that monitored testing showed no further incidents with vomiting. The Veteran otherwise denied abdominal pain, nausea, vomiting, diarrhea, or blood in stools. In January 2017, the Veteran visited the emergency room after experiencing chest pains. In the VA treatment note associated with the visit, the Veteran denied symptoms of vomiting or diarrhea. However, a history of peptic ulcer disease was noted. Overall, the Board finds that the medical evidence prior to September 7, 2017, consistently details symptoms more closely associated with a 30 percent disability rating for his GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion. As previously discussed, for a 60 percent rating, there must be symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. The evidence shows that prior to September 7, 2017, the Veteran suffered from chronic symptoms including recurrent epigastric distress with dysphagia, pyrosis, regurgitation, and chest pain with associated symptoms involving the shoulder blades, but there is no probative evidence that his GERD was productive of severe impairment of health. In fact, numerous VA treatment notes for that period are negative for nausea, vomiting, or hematemesis. The December 2013 VA examination report also noted no nausea, vomiting, or hematemesis. The examination report also noted no ongoing anemia, weight changes, or malnutrition. Moreover, the examiner concluded that the Veteran's symptoms had no impact on his job (he was employed at the time). As such, the Board finds that the Veteran's symptoms were not severe enough to warrant a 60 percent disability rating for that period of time. B. Period starting September 7, 2017 On September 7, 2017, the Veteran was seen by private practitioners J.A.P. and J.B. for chronic diarrhea at the Digestive Diseases Clinic. He complained of bowel movements occurring greater than 15 times per day, at random times of the day, in the middle of the night, and after meals. The Veteran described seeing blood in his stool. He also reported nonpurposeful weight loss, abdominal pain relieved by defecation, mucous mixed in the stool, epigastric pain, nausea, and vomiting. He noted no relief from medications. In an accompanying disability benefits questionnaire, Dr. J.B. noted that the Veteran's intestinal condition is manifested by diarrhea 5-20 times per day, abdominal distension, nausea, and vomiting. Dr. J.B. also noted that the Veteran experiences frequent episodes of bowel disturbance with abdominal distress, with two exacerbations and/or attacks in the past 12 months. Dr. J.B. noted a recent weight loss of 12 pounds attributable to the Veteran's condition. Dr. J.B. found that the Veteran's health is fair only during remissions of his intestinal condition. Dr. J.B. concluded that the Veteran's intestinal condition renders him unable to work, but did not provide further detail or explanation. Overall, the Board finds that the Veteran's gastrointestinal disability symptoms for the period starting September 7, 2017 more closely approximate the diagnostic criteria for a 60 percent disability rating. His symptoms include pain, vomiting, material weight loss and melena, which are productive of a severe impairment of health. Consequently, a 60 percent rating-the highest rating possible for his disability-is warranted. In reaching its conclusion, the Board has considered whether the Veteran's disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). During his October 2017 Board hearing, the Veteran suggested that a 100 percent rating might be warranted for his disability. In such a case, the threshold factor is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the Board finds that the schedular rating criteria envision the Veteran's symptoms. The Veteran has not described any functional impairment associated with his gastrointestinal disability that is not already envisioned by the rating schedule. In short, there is nothing so exceptional or unusual about the Veteran's disability that referral for consideration of an extraschedular rating is warranted. Thun, 22 Vet. App. at 115. Based on the foregoing, the Board finds that the Veteran's service-connected GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion warrants a rating no higher than 30 percent prior to September 7, 2017, and 60 percent thereafter. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7346. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a bilateral hip disorder is dismissed. Entitlement to an initial rating in excess of 20 percent for right shoulder bursitis with history of torn rotator cuff, arm numbness, and tendonitis, is dismissed. Entitlement to an initial rating in excess of 20 percent for thoracolumbar back strain with lumbar spondylosis, is dismissed. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity, is dismissed. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity, is dismissed. Entitlement to a disability rating in excess of 30 percent for the period prior to September 7, 2017 for GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion is denied. Entitlement to a disability rating of 60 percent for the period after September 7, 2017 for GERD with duodenitis and history of peptic ulcer disease, gastritis, and indigestion is granted, subject to the regulations governing the award of monetary benefits. REMAND Although the Board regrets the additional delay, remand is necessary with respect to the Veteran's claim of entitlement to a TDIU in order to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C. § 5103A ; 38 C.F.R. § 3.159. 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). In this case, the September 2017 examination report from Dr. J.B. suggests that the Veteran is unable to work due to his service-connected gastrointestinal disability. Additionally, during his October 2017 Board hearing, the Veteran testified that he is unable to work due to pain, frequent bathroom trips, and the significant amount of medications he is taking. He stated that he is currently unemployed and that he last worked in December 2015. Pursuant to this Board decision, the Veteran has been granted a 60 percent disability evaluation for his gastrointestinal disability. Therefore, he meets the minimum percentage requirements for a TDIU as set forth in 38 C.F.R. § 4.16 (a). However, the Board finds that the evidence of record is insufficient to grant a TDIU at this time. More information is needed concerning the Veteran's employment status, work history, and education. Consequently, on remand, the RO should request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Additionally, the RO should schedule a VA examination to address whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disability. 38 C.F.R. § 4.16. Accordingly, the case is REMANDED for the following actions: 1. Request that the Veteran complete a VA Form 21-8940. Obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. 2. Request that the Veteran identify any and all outstanding VA and private treatment records related to his service-connected disabilities. 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. 3. Notify the Veteran that he may submit lay statements from himself, as well as from other individuals who have first-hand knowledge of the impact of service-connected disabilities on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination in conjunction with the TDIU claim. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. The examiner should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. Specifically, the examiner should determine whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The examiner should comment on the Veteran's ability to function in an occupational environment and describe the functional limitations imposed by his service-connected disabilities. In doing so, consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to any impairment caused by non-service-connected disabilities. The examiner should include a complete rationale for any opinion expressed, based on clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the provider should explain why this is so and note what, if any, additional evidence would permit such an opinion to be made. A written copy of the report should be associated with the claims folder. 5. Then, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish the Veteran and his representative with 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 Veteran 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). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs