Citation Nr: 18146687 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-19 491A DATE: November 1, 2018 ORDER Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a left inguinal hernia is remanded. Entitlement to an initial compensable rating for a left foot condition, status post stress fracture, is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s GERD has been manifested by no more than infrequent episodes of epigastric distress without dysphagia, pyrosis, regurgitation, or substernal, arm, or shoulder pain. CONCLUSION OF LAW The criteria for an initial compensable rating for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1989 to June 1994. The issue of entitlement to service connection for a right inguinal hernia has been raised by the record in the November 2016 notice of disagreement, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). 1. Entitlement to an initial compensable rating for GERD The Veteran has been assigned a noncompensable initial rating under Diagnostic Codes 7399-7346. He contends that a higher rating is warranted. Disability ratings are determined by evaluating 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Diagnostic Code 7399 is a general reference to the rating criteria for disabilities of the digestive system. Diagnostic Code 7346 provides the rating criteria for hiatal hernia. 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. Under Diagnostic Code 7346, a 10 percent rating is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent is assigned 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 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was examined for his GERD in September 2016. At that time, he reported infrequent episodes of epigastric distress that was treated with medication. He denied any other signs or symptoms, including any esophageal problems, and any impact on his ability to work. In addition to the VA examination, the medical evidence includes VA treatment records. These records did not show any more severe symptoms or effects than noted in the VA examination. Upon review of the evidence of record, discussed above, there is no basis for a compensable rating for the Veteran’s GERD. He denied symptoms of recurrent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal or arm or shoulder pain to warrant a compensable rating under his currently assigned diagnostic code. Further, he has denied any symptoms that would allow for a compensable rating under another diagnostic code relating to the digestive system. Specifically, he denied any esophageal problems. Without evidence of more severe symptoms, a compensable rating cannot be assigned under any diagnostic code. The Board has also considered the Veteran’s lay statements that he should be entitled to a higher rating based on his symptoms that were expressed above. Notably the Veteran, as a lay person, is competent to describe observable symptoms such as pain. However, laypersons do not have the competence to render an opinion as to the level of severity of his GERD. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the 0 percent initial rating assigned during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable initial rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran claims that his sleep apnea started in service. To support this claim, he submitted statements from his wife and a fellow service member. Despite this lay evidence of possible in-service onset and medical evidence of currently diagnosed sleep apnea, the Veteran has not been afforded a VA examination and opinion. This claim must be remanded for such. 2. Entitlement to service connection for a left inguinal hernia is remanded. The Veteran was afforded a VA examination to address his left inguinal hernia in September 2016. The examiner was unable to link his post-surgical left inguinal hernia to service because he was not diagnosed for 13 years after his separation from service. However, the examiner failed to address the Veteran’s contentions of continuous left groin pain from service until his surgery. This claim must be remanded for a new VA examination that addresses these contentions. 3. Entitlement to an initial compensable rating for a left foot condition, status post stress fracture, is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s left foot condition, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. This claim must be remanded for a new VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination(s) to determine the nature and etiology of his sleep apnea and left inguinal hernia and the current severity of his left foot disability. With regard to the sleep apnea and left inguinal hernia, the examiner must opine whether they are at least as likely as not related to an in-service injury, event, or disease. The examiner(s) should address the lay statements of snoring in service and left groin pain since service. With regard to the left foot disability, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s left foot disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Moore, Counsel