Citation Nr: 1804108 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-14 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD), status-post Nissen fundoplication. 2. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain, prior to May 1, 2015, and in excess of 40 percent therefrom and reclassified as degenerative disc disease (DDD), lumbar strain, and Scheuermann's disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 2007 to August 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By that rating action, the RO granted service connection for low back disability and GERD, status-post Nissen fundoplication (originally claimed as abdominal condition to include residuals of surgery and chronic pain); each disability was assigned an initial 10 percent disability rating, effective August 25, 2010--the day following the Veteran's discharge from military service. The Veteran appealed the RO's assignment of initial 10 percent ratings to the above-cited service-connected disabilities to the Board. In July 2014, the Veteran testified before the undersigned at a video conference hearing via the above RO. A copy of the hearing transcript is of record. In February 2015, the Board remanded the claims for additional evidentiary development, to include obtaining of updated treatment records and contemporaneous and appropriate examinations to determine the current severity of the Veteran's service-connected disorders on appeal. During remand status, in an April 2015 rating action, the RO granted service connection for posttraumatic stress disorder (PTSD) with major depressive disorder and assigned an initial rating of 70 percent, effective January 30, 2015. Also, in an August 2015 rating decision, the 10 percent rating in effect for lumbar strain prior to May 1, 2015 was confirmed, but from that date forward, a 40 percent rating was assigned, and the lumbar spine condition was reclassified to include DDD as noted on the title page of this decision. The August 2015 rating decision also established service connection for a separate gastrointestinal (GI) disorder, classified as esophageal stricture, and assigned a 30 percent evaluation, effective May 1, 2015. The Board has considered whether or not entitlement to a total rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) has been raised by either the record or the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that it has not been raised. In explanation, it is noted that as a result of the above summarized rating actions, a combined 100 percent rating has been in effect for part, but not all, of the appeal process period. Specifically, a combined 100 percent rating has been established from May 1, 2015. At no time, has the Veteran stated that any of his various service-connected disorders have rendered him unemployable. In fact, he testified in 2013 that he was employed and again described full-time employment as a mechanic upon VA PTSD examination in May 2015. There is no indication that he has been unemployed at any point during the appeal process. Therefore, TDIU is not for consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As noted above, the Board remanded the claims on appeal for updated treatment records and for appropriate examinations to address the severity of the Veteran's GERD and low back disorders in February 2015. Subsequently, the Board obtained treatment records dated in 2014 and 2015 showing ongoing treatment for back symptoms with the necessity for epidural steroid shots to alleviate pain. He also continued to be seen for nausea and diarrhea. When examined by VA in June 2015 regarding his lumbar spine condition, it was noted that forward flexion ended at 50 degrees with pain beginning at 35 degrees. With repetitive use testing, his forward flexion ended at 30 degrees. The examiner noted that there was weakened movement, excess fatigability, incoordination, and pain on movement. While intervertebral disc syndrome (IVDS) was not demonstrated, the examiner noted that the Veteran's spinal condition was markedly worse than upon previous examination in 2013. Specifically, he had lost ROM, particularly after repetitive motion testing. Moreover, magnetic resonance imaging (MRI) tests now showed DDD. Treatment records dated subsequent to the examination of the spine in June 2015 are not of record. The Veteran's ongoing and persistent symptoms at the time of the 2015 examination suggest that there would be additional and contemporaneous treatment records to review. Similarly, as the Veteran's GERD symptoms were active and significant at the time of the Board's June 2015 examination and included persistent epigastric distress (significant acid reflux and regurgitation), it would follow that there would be additional and more contemporaneous treatment records to review. The representative argued in a January 2017 document that the RO failed to consider the impact of symptoms of GERD and DDD on the Veteran's daily activities, to include his work and daily activities, and that extraschedular consideration is required as to the claims on appeal. Considering that remand is necessary to obtain outstanding treatment records, as detailed below, the length of time since the last VA examinations and the request for extraschedular consideration, the Board finds that the Veteran should also be afforded new and appropriate VA examinations to obtain contemporaneous, pertinent information to assess the current nature and severity of his DDD and GERD disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is hereby notified that failure to report to any scheduled examinations, without good cause, may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Accordingly, the case is REMANDED for the following action: 1. Updated treatment records, private and VA, should be obtained and added to the claims file. 2. Following completion of the above, schedule the Veteran for an examination to determine the current nature and severity of his service-connected GERD, status-post Nissen fundoplication disorder. Symptoms associated with the separately service-connected esophageal stricture should be specifically identified by the examiner. The claims file should be made available to and reviewed by the examiner in connection with the examination. Any medically indicated tests should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected GERD, status-post Nissen fundoplication. The examiner should specify whether the Veteran's disability is accompanied by persistent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, and is productive of considerable impairment of health. The examiner should also discuss the impact such disability has on the Veteran's activities of daily living and employment. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected status-post DDD, lumbar strain, and Scheuermann's disease. The claims file should be made available to and reviewed by the examiner in connection with the examination. Upon review of the record and examination of the Veteran, the examiner should specifically identify (1) the ranges of motion of the Veteran's lumbar spine, including the point at which motion is accompanied by pain, in degrees; (2) any identifiable functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use; and (3) the frequency and duration of any incapacitating episodes occurring during the past 12 months requiring bed rest prescribed by a physician and treatment by a physician. The examiner should specifically assess the severity of all neurological symptomatology of the lower extremities associated with the service-connected low back disability. The examiner should also discuss the impact the lumbar spine disability has on the Veteran's activities of daily living and employment. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Then, the RO should readjudicate the Veteran's claims based on all of the evidence of record. Extraschedular ratings should be considered, as requested. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review, 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). _________________________________________________ BARBARA B. COPELAND 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).