Citation Nr: 18155949 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-37 414 DATE: December 6, 2018 ORDER Entitlement to an increased rating of 30 percent, but no higher, for GERD is granted for the entire period on appeal. REMANDED Entitlement to an increased rating in excess of 10 percent for left knee tricompartmental degenerative joint disease (DJD) is remanded. Entitlement to an increased rating in excess of 10 percent for right knee DJD is remanded. Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the left ankle is remanded. Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the right ankle is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran’s GERD manifested in persistently recurrent epigastric distress with pyrosis, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health for the entire period on appeal. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an evaluation of 30 percent, but no higher, for GERD have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from September 1977 to August 1981 and from November 1981 to December 2001. Entitlement to an increased rating of 30 percent for GERD is granted for the entire period on appeal. 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected that all cases will show all the findings specified. 38 C.F.R. § 4.21. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The criteria for evaluating GERD are found at 38 C.F.R. § 4.114, Diagnostic Code 7346, which provides that symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health are rated as 60 percent disabling. Symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health are rated as 30 percent disabling. GERD displaying two or more of the symptoms for the 30 percent evaluation, of less severity, are rated as 10 percent disabling. The Board notes that the 10 percent rating is arrived at by comparison to the 30 percent rating, and is appropriate where the symptoms are “of less severity” than those for a 30 percent evaluation. The level of severity ascribed to the 30 percent category is “productive of considerable impairment of health.” The level of impairment ascribed to the 60 percent category is “productive of severe impairment of health.” The Board notes further that the terms “considerable” and “severe” are not defined in the VA rating schedule. Of the symptoms listed in the 30 percent disability category, the Veteran has displayed persistently recurrent epigastric distress with pyrosis, accompanied by substernal or arm or shoulder pain and chest pressure that at times has been severe. The Veteran applied for service connection in October 2011. A VA medical record from February 2014 shows GERD on the Veteran’s list of active problems. In December 2014, the Veteran was hospitalized with GERD symptoms including a 10-day history of chest pain. Medical records from Madigan Army Medical Center indicate a worsening of symptoms in 2015 and 2016. In April 2015, dysphagia was noted, and chronic pain at a level of 5/10. In November 2015, it worsened to 6/10; the same level of severity was noted in January 2016, with the pain radiating into the left arm. A January 2018 private medical record shows continuing symptoms, including chest pain, epigastric pain, and dysphagia. Records show that the Veteran has been prescribed multiple medications for his GERD symptoms. The Veteran underwent VA examination in March 2015. At that time, he was diagnosed with GERD and noted to report symptoms of reflux, pressure, and discomfort in the chest. At a VA examination in May 2017, the Veteran was noted to experience persistently recurrent epigastric distress, pyrosis, reflux, and substernal, arm, and shoulder pain. No vomiting, weight loss, hematemesis, or melena was reported. The Board notes that a rating of 30 percent requires a finding that the Veteran’s health was “considerably” impaired by his disability. The Board finds the above history sufficient to indicate a considerable impairment of the Veteran’s health. Here, the May 2017 VA examiner in particular noted that the Veteran experienced persistently recurrent epigastric distress, pyrosis, reflux, and substernal, arm, and shoulder pain due to his GERD. The Board concludes the Veteran’s disability picture is essentially consistent with a finding of considerable impairment of health under Diagnostic Code 7346. As such, the Board finds that the probative medical and other evidence is commensurate with a 30 percent rating for his GERD. See 38 C.F.R. § 4.114, Diagnostic Codes 7319, 7346. The Board further finds that the Veteran’s GERD symptoms have not resulted in the severe impairment of health contemplated by the 60 percent evaluation. While the Veteran’s symptomatology includes pain, it does not include vomiting, hematemesis or melena, and the Veteran stated that his significant weight loss was intentional. In light of the above, and resolving reasonable doubt in favor of the Veteran, the Board finds a disability evaluation of 30 percent, but no higher, is warranted for the Veteran’s GERD for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for left knee tricompartmental degenerative joint disease (DJD) is remanded. 2. Entitlement to an increased rating in excess of 10 percent for right knee DJD is remanded. 3. Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the left ankle is remanded. 4. Entitlement to an increased rating in excess of 10 percent for traumatic arthritis of the right ankle is remanded. The Veteran has service-connected arthritis in both knees and both ankles. Each such disability is currently evaluated as 10 percent disabling. In October 2014, VA provided the Veteran examinations for his knees and ankles, based on which in April 2015 the RO continued the 10 percent ratings. The Veteran appealed, and the RO afforded additional knee and ankle examinations in May 2017. The Board notes, however, that neither the October 2014 nor the May 2017 examinations complied with the requirements for examinations of the joints as established by the Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017), and for that reason the Board will remand for new examinations. In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 32. The Board notes a lack of evidence that the examiner in either the October 2014 or the May 2017 examination sought such evidence from the Veteran, and neither examination provided an opinion from the examiner, or an estimate, of range-of-motion reductions (if any) following repeated use over time or on flare-up. The May 2017 examiner stated, both for the ankles and the knees, that estimating any additional range of motion losses resulting from repetitive use over time or during a flare-up would be speculative, because the examination was not taking place after repetitive use over time or during a flare-up. In Sharp, however, the Court held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board accordingly finds the May 2017 examinations to be insufficient, as there is no indication the examiner obtained the Veteran’s lay statements as to the extent of his functional loss as a result of use of the joints over time or during a flare-up, did not offer an opinion on that subject, and did not provide estimates of that functional loss in terms of limitations to range of motion after use over time or during flare-ups. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA and private medical records, and associate them with the claims file. 2. Thereafter, afford the Veteran VA examinations to assess the current severity of his bilateral knee and ankle disabilities. The Veteran’s claims file must be provided to the examiner, who should note that the file has been reviewed. The examiner must obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report of the evaluation. Any testing deemed necessary must be performed. The examiner is asked to identify the symptoms and any impairments that currently result from the Veteran’s service-connected knee and ankle disabilities, and discuss their impact on his occupational functioning. The examiner is advised that testing of joints must include testing for impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. Range-of-motion testing for joints with painful motion should include both active and passive motion, and motion in weight-bearing and non-weight-bearing. The examiner must express an opinion on whether pain could significantly limit the Veteran’s functional ability, to include interference with employment, and that determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner must attempt to elicit information directly from the Veteran as well as from the record regarding the severity, frequency, duration, and functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Any general inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must provide a rationale for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David S. Katz, Associate Counsel