Citation Nr: 18159577 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-08 731 DATE: December 20, 2018 ORDER Entitlement to an initial rating of 10 percent, but no higher, for gastroesophageal reflux disease (GERD) with H. Pylori infection is granted. Entitlement to an initial compensable rating for scar of the right knee is denied. REMANDED Entitlement to service connection for right knee condition, claimed as swelling or damaged cartilage, is remanded. FINDINGS OF FACT 1. The Veteran’s GERD with H. Pylori infection is manifested by symptoms that include regurgitation and regularly occurring abdominal pain, and requires medication for control of symptoms, but is not productive of considerable impairment of health. 2. The Veteran’s scar on the right knee is not unstable or painful and is not the result of a burn. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent, but no higher, for GERD with H. Pylori infection have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.7, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to an initial compensable rating for scar, right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.321, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to August 1967. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an initial rating of 10 percent, but no higher, for GERD with H. Pylori infection The Veteran seeks an initial compensable evaluation for his service-connected GERD with H. Pylori infection. After a thorough review of the evidence, the Board finds that the Veteran’s disability more closely approximates the 10 percent rating for his disability. GERD is rated by analogy under Diagnostic Code (DC) 7346. 38 C.F.R. § 4.114. Under DC 7346, a 10 percent rating is warranted where there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation 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. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health. An October 2012 VA treatment note documented that the Veteran was changing his medication for GERD because it was causing unwanted side effects, but the GERD condition was stable. The Veteran was afforded a VA examination in March 2013 for stomach disorders, but the examiner used the disability benefits questionnaire (DBQ) specifically excluding GERD. Nonetheless, the examiner diagnosed GERD and H. Pylori infection as well as hiatal hernia and gastritis. The examiner noted that the Veteran’s symptoms included four or more episodes of recurring symptoms that are not severe per year, lasting one to nine days, of abdominal pain categorized as pronounced, periodic, and partially relieved by standard ulcer therapy. The examiner also opined that the impact on the Veteran’s work would be inability to perform jobs with irregular meal times and heavy lifting (over 20 pounds), or recumbency within two to three hours after a meal. The Veteran was afforded another VA examination in July 2013 wherein the examiner utilized the DBQ for GERD and similar conditions. The examiner also confirmed a diagnosis of GERD. The symptoms noted were regurgitation. The examiner also noted that the Veteran regularly took medication for his GERD. The Board has considered whether the Veteran’s gastroesophageal condition should be rated under another Diagnostic Code. The Veteran has also been diagnosed with hiatal hernia (which is the formal Diagnostic Code 7346 category for which he is already rated). Although the Veteran was diagnosed with gastritis, he has not been diagnosed with hypertrophic gastritis, so Diagnostic Code 7307 is not for application. Additionally, the remaining digestive system codes pertain to conditions for which the Veteran has not been diagnosed. Accordingly, the Veteran’s GERD is most appropriately rated under the current Diagnostic Code, 7346. 38 C.F.R. § 4.114. Based on the Veteran’s symptoms and medical evidence of record, the Board finds that the GERD disability more closely approximates the 10 percent disability evaluation level. Although the Veteran has not shown two of the symptoms noted in the 30 percent evaluation category (dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health), the Veteran has regurgitation, has regularly occurring non-severe abdominal pain, and takes regular medication for relief. Thus, the Board finds that the Veteran’s GERD warrants a 10 percent rating evaluation. However, a 30 percent evaluation for GERD, exhibited by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is not warranted. The examinations and medical evidence of record do not support that the Veteran has dysphagia, pyrosis, substernal or arm or shoulder pain, or that the Veteran’s symptoms are productive of considerable impairment of health. The Veteran takes antacid medication when necessary. There have not been reports of regular vomiting, nausea, or significant weight loss, or other indications documented by medical providers that the Veteran’s GERD causes considerable impairment of health. Thus, a 30 percent rating for GERD is not warranted. Accordingly, the Board grants an initial rating evaluation of 10 percent, but no higher, for the Veteran’s GERD with H. Pylori infection. 38 C.F.R. § 4.7. 2. Entitlement to an initial compensable rating for scar of the right knee The Veteran contends that his right knee disability extends beyond his scar; however, the scar was evaluated as part and parcel of the right knee appeal. After a thorough review of the evidence, the Board finds that a compensable rating for the Veteran’s right knee scar is not warranted. The Veteran was afforded a VA examination for scars in March 2013. The examiner measured the Veteran’s linear scar as 1.5 inches long on the right knee. The scar was not unstable or painful, and did not result in functional limitation. The scar was not located on the head, face, or neck, and was not the result of burns, and was not deep. Scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to scars of the head, face, or neck, which was not the location of the Veteran’s service-connected scar. Under Diagnostic Code 7801 burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The Veteran’s scar is not reported as deep or nonlinear. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. In this case, the Veteran’s scar is not shown to be unstable or painful. Under Diagnostic Code 7805, disabling effects of scars not considered under Diagnostic Codes 7800-7804 may be rated under an appropriate code. However, in this case, the Veteran’s scar does not result in disabling effects. There is no functional impairment resulting from the scar. Therefore, the Board can find no basis for a compensable rating. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a compensable rating for right knee scar. REASONS FOR REMAND Entitlement to service connection for a right knee condition, claimed as swelling or damaged cartilage. The Veteran originally claimed entitlement to service connection for bilateral knee condition, noted as swelling knees. In the July 2013 rating decision, the RO granted entitlement to service connection for right knee scar, but noted that the Veteran’s service treatment records (STRs) had no trauma to the right knee. The Veteran was afforded a VA examination for scars, but not for knee conditions. The Veteran’s STRs document a cut on the right knee for which a tetanus shot was administered. The Veteran, in the February 2017 VA Form 9, stated that the right knee cartilage was damaged during service. The Veteran’s current medical treatment records show degenerative changes in the bilateral knees and joint effusion per an April 2010 X-ray. Based on the evidence above, the Board finds that the Veteran should be afforded a VA examination to identify all current right knee disorders and for etiological opinions pertaining to those diagnoses. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159 (c)(4) (2017). The matter is REMANDED for the following action: 1. Obtain any relevant, outstanding VA or private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to for the right knee. The examiner must first identify all current disorders pertaining to the right knee. Then, for each identified disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not that the identified disorder is related to an in-service injury, event, or disease, including the Veteran’s assertion of damage to the right knee cartilage in the same incident resulting in the cut on the right knee in June 1967. (Continued on the next page)   A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel