Citation Nr: 18158327 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 11-17 315 DATE: December 18, 2018 ORDER Entitlement to a 10 percent rating prior to March 5, 2012, and a 30 percent rating from that date forward for gastroesophageal reflux disease (GERD) is granted subject to the laws and regulations governing monetary awards. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to a compensable rating prior to March 16, 2017, and a rating in excess of 10 percent thereafter for metatarsalgia, previously rated as bone spur of the left foot, is remanded. FINDINGS OF FACT 1. For the period prior to March 5, 2012, GERD has been manifested by epigastric distress with pyrosis and regurgitation. 2. For the period beginning March 5, 2012, GERD has been manifested by persistent epigastric distress with nausea, dysphagia, pyrosis, regurgitation, accompanied by substernal pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for entitlement to a 10 percent rating prior to March 5, 2012 and a 30 percent rating beginning that date and forward, for GERD, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, DC 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1981 to June 1995. In April 2017, July 2017 and May 2018, the Veteran testified at Board hearings. The transcripts are of record. This is a panel decision as testimony was taken by three judges on the same issues. I. Increased Rating GERD Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia under DC 7346. See 38 C.F.R. § 4.20 (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). DC 7346 provides a 60 percent rating 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; a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, DC 7346. The criteria for a 30 percent evaluation are conjunctive in part as indicated by the use of the word "and." See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). In April 2011, the Veteran was granted service connection for GERD and received a noncompensable rating effective September 4, 2008. The Veteran provided a notice of disagreement and, in an April 2017 rating decision, the Veteran was granted increase to 10 percent effective March 5, 2012 for GERD. The Veteran contends he is entitled to a compensable rating prior to March 5, 2012 and a rating in excess of 10 percent thereafter due to his symptoms of epigastric burning, heartburn, chest and throat pain, regurgitation, and nausea. For the following reasons, the Board finds that the evidence of records supports an increased rating for both time periods. Prior to March 5, 2012 The Veteran attended a VA examination in April 2011 and reported epigastric burning, diet restrictions and the need for medication to treat his condition. The examiner reported that the Veteran had textbook symptoms of GERD, specifically noting heartburn. Review of the medical records, reveal continued complaints and treatment for GERD prior to March 5, 2012. The treatment records report that the Veteran suffered from mild GERD with heartburn with more noticeable episodes occurring at night. In March 2012, the Veteran underwent Nissen fundoplication surgery due to chronic heartburn, regurgitation and hiatal hernia. When making a decision, the Board must consider all the evidence of record, to include lay statements and testimony. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In June 2011 the Veteran provided a statement outlining his treatment and symptomology related to GERD. The Veteran reported symptoms of epigastric burning, heartburn, regurgitation, nausea, and chest and throat pain. Additionally, the Veteran testified that, prior to his surgery in 2012, he was taking approximately 30 TUMS a day due to his GERD symptoms. The Board finds the Veteran is competent and credible to describe the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). For a compensable rating of 10 percent, the Veteran must have two or more of the symptoms for the 30 percent evaluation of less severity. The Boards finds that the evidence establishes that a compensable rating of 10 percent is warranted. The medical records and Veteran’s statements establish that the Veteran had symptoms of pyrosis, regurgitation, and epigastric distress prior to March 5, 2012. See DC 7346. The Board finds a rating in excess of 10 percent is not warranted. The next higher rating of 30 percent requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While the Veteran suffered from several symptoms listed within the criteria for a 30 percent rating, the treatment records consistently described his GERD as mild. The Veteran’s mild symptoms, while persistent, did not demonstrate the severity necessary to establish a considerable impairment of health. Therefore, the Veteran’s symptomology does not warrant a rating in excess of 10 percent. From March 5, 2012 In March 2017, the Veteran underwent a VA examination. The examiner noted diagnoses of GERD and hiatal hernia. The examiner reported that the Veteran requires ongoing treatment and his symptoms include infrequent episodes of epigastric distress, pyrosis, regurgitation, substernal pain, and material weight loss. In May 2017, the Veteran submitted a disability benefits questionnaire (DBQ) from his provider, nurse practitioner A.H., who noted reoccurring severe symptoms that include vomiting and incapacitating episodes due to feeling like food is stuck. Additionally, A.H. noted that the Veteran’s upper endoscopy in October 2015 found persistent acute and chronic inflammation. In July 2017, A.H. provided a statement that the Veteran has severe GERD, with symptoms of recurrent epigastric distress and occasional vomiting with some pain in the arm or shoulder. A.H. concluded that the Veteran’s GERD causes a significant impairment. The Veteran’s medical records show continuous complaints and treatments for GERD, which include episodes of gastric distress, pyrosis, regurgitation, and substernal pain. Additionally, the Veteran provided testimony at three separate Board hearings consistently describing symptoms of heartburn, regurgitation, trouble swallowing, pain, hiatal hernia, weight loss of about 20 pounds, and shoulder pain. The Veteran is competent and credible to describe his symptoms and his statements are afforded significant weight. Barr, 21 Vet. App. 303. Based on the Veteran’s reported symptomology, the treatment records establishing continuity of care, and the assessments of the March 2017 VA examiner and the May 2017 assessment of A.H., the Board finds “a considerable impairment of health.” As the Veteran’s symptomology most closely aligns with the criteria reflected in the 30 percent evaluation, an increased rating is warranted. The Board does not find that the Veteran’s GERD is productive of a severe impairment of health and therefore does not warrant a rating in excess of 30 percent. The Board has considered the statement of A.H. noting severe GERD causing significant impairment; however, the Veteran’s symptomology is most closely aligned with the criteria contemplated by the 30 percent rating. While the record indicates weight loss, the evidence does not establish hematemesis, or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Having considered the Veteran’s statements, along with the objective medical findings, the Veteran has not been shown to meet the criteria contemplated by a rating of 60 percent for GERD. The Board has considered whether a higher or separate disability evaluation is available under any other potentially applicable provision of the rating schedule. However, a higher evaluation is not warranted based on any other provision of the rating schedule as there is no symptomatology or pathology that meets any other criteria set out for the digestive system. See generally 38 C.F.R. § 4.114. Therefore, an increased rating of 30 percent is warranted from March 5, 2012 and thereafter. REASONS FOR REMAND 1. Service Connection Left Ankle Condition The Veteran had a VA examination for his left ankle condition in April 2011. The examiner reported that the Veteran did not have a current diagnosis related to his left ankle as he had no deformity, arthritis or evidence of a soft tissue injury. The Veteran’s post-service medical records from June 2014 reflect a diagnosis of arthritis of the left ankle and a small spur at the insertion of the Achilles tendon. Additionally, at the April 2017 hearing the Veteran testified that his left ankle condition is secondary to his service connected metatarsalgia. As the evidence establishes a current diagnosis, a remand for a new VA examination is warranted to obtain an opinion as to nature and etiology of the Veteran’s left ankle condition. 2. Increased Rating Left Foot Metatarsalgia Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran attended a VA examination in April 2017 for his service connected left foot metatarsalgia and diagnostic testing revealed arthritis of the left foot. The Board finds this examination is inadequate as it does not include range of motion testing, to include findings as to the Veteran’s functional impairment due to pain on active and passive motion, and during weight-bearing and non-weight-bearing. 38 C.F.R. § 4.59 (2014); Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016). Furthermore, recent United States Court of Appeals for Veterans Claims (Court) precedent, citing to a VA clinician's guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record; or explain why he or she could not do so. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, the agency of original jurisdiction (AOJ) should specifically consider whether the Veteran meets the criteria for separate compensable ratings for his left foot condition. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (holding that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have “separate and distinct manifestations” from the same injury, permitting separate disability ratings). The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination with a medical professional with appropriate expertise to determine the nature and etiology of any diagnosed left ankle conditions, to include arthritis. The examiner should review the Veteran’s claims file, including a copy of this remand, and comment on the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that arthritis and any left ankle conditions are related to active service, or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that arthritis and any left ankle conditions are proximately due to or the result of the Veteran’s service-connected left foot metatarsalgia? (c.) If the answer to (b) is negative, is it at least as likely as not that arthritis and any left ankle condition is aggravated (i.e., permanently or temporarily worsened) by the service-connected left foot metatarsalgia? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should consider and address the Veteran’s testimony and lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA medical examination to determine the current severity of his service-connected left foot metatarsalgia. The electronic claims file, to include a copy of this remand, must be reviewed in conjunction with the examination. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing of both the right and left ankle. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means. The examiner must provide an estimate of additional functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. The examiner should consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examiner must also provide an assessment of the Veteran’s functional limitations due to his left foot conditions as it may relate to his ability to function in a work setting and to perform work tasks. However, the examiner should refrain from commenting on the Veteran’s employability. A complete rationale should be given for all opinions and conclusions rendered. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 4. Finally, readjudicate the appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel