Citation Nr: 1804819 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-21 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for rhinitis. 3. Entitlement to a rating in excess of 10 percent for a low back disability. 4. Entitlement to a rating in excess of 10 percent for a neck disability REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 2003 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) and August 2012 rating decision by the Milwaukee, Wisconsin RO. The March 2012 rating decision, in pertinent part, denied ratings in excess of 10 percent, each, for low back and neck disabilities. The August 2012 rating decision, in pertinent part, denied service connection for GERD and allergic rhinitis. The claims file is now in the jurisdiction of the Milwaukee RO. In January 2017, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. [The Veteran also initiated appeals of denials of increased ratings for left and right knee disabilities, but expressly limited her appeal to the matters of service connection for GERD and rhinitis and regarding the ratings for low back and neck disabilities in a June 2014 substantive appeal. In addition, new evidence, including records of VA treatment, was added to the record without her waiver of Agency of Original Jurisdiction (AOJ) initial review after the statement of case (SOC) was issued in May 2014. The AOJ will have opportunity to consider this evidence in the first instance on remand.] The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on her part is required. REMAND The Board finds that further development of the record remains necessary for proper adjudication of the instant claims. On August 2012 VA examination, GERD was diagnosed. The examiner noted the date of diagnosis was September 2011. The examiner reported there was no evidence of treatment or reported symptoms between 2006 and September 2011 (when medication for heartburn was prescribed). The examiner opined she was unable to associate the GERD to one episode of heartburn on active duty in 2006. She explained there was no documentation of symptoms until five years after service. At the January 2017 Board hearing, the Veteran testified that she had experienced heartburn constantly since service but treated it with over-the-counter antacids until it became severe enough to require her to seek VA treatment in September 2011. At the hearing, her representative noted that the August 2012 VA examiner did not consider the Veteran's reports of continuing symptoms since service, and requested another examination that would encompass contemplation of the entire record. In light of the Veteran's testimony at the hearing, and her representative's allegations regarding the adequacy of the medical examination, the Board finds that another examination is necessary. Regarding service connection for allergic rhinitis, the August 2012 VA examiner noted allergic rhinitis was diagnosed in 2005, but then opined the Veteran's condition was a "seasonal, locality trigger" condition not related to military service. Accordingly, there is conflicting evidence whether or not the Veteran, in fact, has a chronic allergic rhinitis. Furthermore, the examiner observed that the Veteran received a prescription for nasal congestion medication in August 2005, but that there was no evidence of allergy-like symptoms again until September 2011, when environmental allergies were diagnosed. However, the examiner failed to acknowledge that allergies was listed among the Veteran's ongoing issues on August 2006 separation examination and that private treatment records show allergic rhinitis was diagnosed in April 2010 after the Veteran complained of sinus pressure and itchy eyes. At the January 2017 Board hearing, the Veteran testified she has experienced allergic rhinitis-related symptoms, including itchy eyes, a runny nose, and sinus pressure, continuously since service. A remand another medical opinion is necessary. The most recent VA examinations to assess the Veteran's low back and neck disabilities were in April 2014. At the January 2017 Board hearing, she asserted that those disabilities had increased in severity. She reported her neck pain causes a tingling sensation in her arm and constant muscle spasms, and is severe enough at times to require that she lie down, and that her low back disability causes pain and a tingling sensation in her leg. In light of the allegation of an increase in the severity of the disabilities since the last examinations to assess them, new examinations to assess the disabilities are necessary. Updated records of any VA treatment the Veteran may have received for her low back and neck disabilities, and claimed GERD and allergic rhinitis are constructively of record, may contain pertinent information, and must be secured. The case is REMANDED for the following: 1. The AOJ should secure for the record complete clinical records of all VA evaluations and treatment the Veteran has received for her low back and neck disabilities, and claimed GERD and allergic rhinitis (i.e., updated to the present). If any such records are unavailable, the reason must be explained for the record, and the Veteran should be so advised. 2. The AOJ should then arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of the diagnosed GERD and to confirm whether or not she has chronic allergic rhinitis and, if so, its likely etiology. The Veteran's record (to include this remand, her service treatment records (STRs), postservice treatment records, and January 2017 testimony) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) What is the most likely etiology for the Veteran's GERD? Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) her active duty service? The examiner must include rationale with all opinions, to specifically include comment on the textual evidence and opinion already in the record, including the STRs; the Veteran's reports of experiencing self-treated with over-the-counter medication GERD symptoms, including heartburn, since service; and the August 2012 VA examiner's opinion (expressing agreement or disagreement, and explaining the rationale for the agreement/disagreement). (b) Does the Veteran have allergic rhinitis? If not, please reconcile that conclusion with the history of allergic rhinitis noted in her medical records, including in April 2010 private treatment records and on August 2012 VA examination. (c) If so, what is the most likely etiology for the allergic rhinitis? Specifically, is it at least as likely as not (a 50% or better probability) that such disability arose during (was first manifested in, or is otherwise etiologically related to) the Veteran's active duty service (to include her allergy-related complaints)? The examiner must include rationale with all opinions, to specifically include comment on the textual evidence and opinion already in the record, including the STRs; the Veteran's reports of experiencing allergic rhinitis-related symptoms, including itchy eyes, a runny nose, and sinus pressure since service; and the August 2012 VA examiner's opinion (expressing agreement or disagreement, and explaining the rationale for the agreement/disagreement). 3. The AOJ should also arrange for an orthopedic examination of the Veteran (with neurological consult if indicated) to assess the current severity of her service-connected low back and neck disabilities. The Veteran's record (to include this remand, all records received pursuant to the development sought above, and the Veteran's January 2017 testimony) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please assess the current severity of the low back disability. [The examiner must be provided the criteria for rating spine disabilities, and the findings noted should include the information needed to rate the disability under the criteria for rating disabilities of the spine.] The findings must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). The examiner should note the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the spine cannot be tested on "weight-bearing," then the examiner must specifically state so (with explanation why that is so). It should be specifically noted whether the spine is ankylosed (and if so, the position of ankylosis); and whether there are any neurologic manifestations of the low back disability, and if so their nature and severity. (b) Please assess the current severity of the neck disability. The findings must include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, etc.). The examiner should note the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the spine cannot be tested on "weight-bearing," then the examiner must specifically state so (with explanation why that is so). It should be specifically noted whether the spine is ankylosed (and if so, the position of ankylosis); and whether there are any neurologic manifestations of the neck disability, and if so their nature and severity. The examiner must explain the rationale for all opinions. 4. The AOJ should then review the entire record and readjudicate the claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and her representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK 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).