Citation Nr: 18160922 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-03 879 DATE: December 28, 2018 ORDER An initial rating of 10 percent prior to May 24, 2017 for gastroesophageal reflux disease (GERD) with hiatal hernia is granted. An initial rating in excess of 10 percent for GERD with hiatal hernia is denied. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for right shoulder disorder, to include as secondary to service-connected GERD with hiatal hernia, is remanded. Entitlement to service connection for left shoulder disorder, to include as secondary to service-connected GERD with hiatal hernia, is remanded. FINDINGS OF FACT 1. Prior to May 24, 2017, the Veteran’s service-connected GERD with hiatal hernia was manifested by two or more of the symptoms for the 30 percent evaluation of less severity. 2. For the entire initial rating period, the Veteran’s service-connected GERD with hiatal hernia has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 10 percent prior to May 24, 2017 for GERD with hiatal hernia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.27, 4.114, Diagnostic Code 7399-7346 (2018). 2. The criteria for entitlement to an initial rating in excess of 10 percent for GERD with hiatal hernia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.27, 4.114, Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1995 to September 2015. In June 2018, the Veteran revoked Disabled American Veterans as his representative after the certification of this appeal. The Veteran also noted he does not wish to have any representative at this time, thus the Board will proceed under the assumption that he wishes to represent himself. As service connection, an initial rating, and an effective date have been assigned for the issue of entitlement to a higher rating for GERD with hiatal hernia, the notice requirements of 38 U.S.C. § 5103(a) have been met. VA fulfilled its duty to assist the Veteran in obtaining identified and available records. 38 U.S.C. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. The Veteran was afforded VA examinations in May 2015 and May 2017 to evaluate the severity of his GERD. The VA examinations are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions, and because they describe his GERD in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additional VA treatment records have been associated with the record since the case was certified to the Board in October 2017; however, it does not pertain to GERD other than to note that the condition is present and so a waiver of initial Agency of Original Jurisdiction review is not needed and the Board may proceed with the claim. In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Entitlement to an initial compensable rating prior to May 24, 2017 and in excess of 10 percent thereafter for GERD with hiatal hernia Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection on October 1, 2015. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed his initial claim requesting service connection for GERD in April 2015. In the February 2016 VA rating decision, service connection for GERD with hiatal hernia was granted. The Veteran was assigned a noncompensable (0 percent) rating for the entire appeal period effective from October 1, 2015 (day following separation from active service). See 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. During the course of the appeal in a September 2017 VA rating decision, a 10 percent disability rating was assigned effective from May 24, 2017. Id. Since the 0 percent and 10 percent disability ratings are not the maximum ratings available prior to May 24, 2017 or thereafter, the issue has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Board considers whether an initial compensable rating prior to May 24, 2017 and in excess of 10 percent thereafter for GERD with hiatal hernia is warranted in this case. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be assigned as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the digestive system, and the last two digits will be 99 for all unlisted conditions. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Thus, in this case, Diagnostic Code 7399 denotes an unlisted condition of the digestive system, and the rating criteria most analogous to the Veteran’s service-connected GERD with hiatal hernia are encompassed in Diagnostic Code 7346. Under Diagnostic Code 7346 for hiatal hernia, a compensable rating of 10 percent is warranted when two or more of the symptoms for the 30 percent evaluation are of less severity; a 30 percent rating 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; and a 60 percent rating, the maximum available, 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. Review of the evidentiary record since October 1, 2015 documents the following symptomatology of the Veteran’s GERD with hiatal hernia. Prior to the appeal period, the Board notes a January 2015 service treatment record shows the Veteran’s complaint of stomach pain for two days and assessment of abdominal pain. The Veteran also underwent a VA Disability Benefits Questionnaire (DBQ) examination for esophageal conditions in May 2015. The Veteran reported having occasional heartburn. Upon clinical evaluation, the Veteran demonstrated the only sign and symptom of pyrosis (heartburn) and diagnostic testing revealed a small sliding hiatal hernia with episodic moderate GERD without associated distal esophageal mass or stricture. The VA examiner rendered diagnoses of GERD and hiatal hernia and noted there were no clinical findings of an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. In a statement submitted with the January 2017 substantive appeal, VA Form 9, the Veteran reported he regularly wakes in the middle of the night to vomit from severe heartburn. On May 24, 2017, the Veteran underwent an additional VA DBQ examination for esophageal conditions. The Veteran reported his condition began in 2000 and has stayed the same with symptoms of heartburn, acid reflux, regurgitation, and nausea/vomiting. He also noted there were no symptoms of hematochezia, melena, mild chest discomfort, or dysphagia. Upon clinical evaluation, the VA examiner noted current signs and symptoms of infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, nausea once per year and less than once a day, and vomiting once per year and less than once a day. The VA examiner affirmed the Veteran’s diagnoses of GERD and hiatal hernia and noted there were no clinical findings of an esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The most probative evidence of record shows that during the appeal period prior to May 24, 2017, the Veteran’s service-connected GERD with hiatal hernia was manifested by two or more of the symptoms for the 30 percent evaluation of less severity, thus the 10 percent criteria were met. Specifically, such symptoms of pyrosis, regurgitation, and vomiting of less severity were present since onset of the disability during active service. Nevertheless, with regard to the entire initial rating appeal period, the Board finds the Veteran’s service-connected GERD with hiatal hernia has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, thus the next-higher rating of 30 percent is not warranted. While the Veteran has reported bilateral shoulder pain during flare-ups of heartburn due to GERD, the Veteran has demonstrated, as noted above, infrequent episodes of epigastric distress, nausea once per year and less than once a day, and vomiting once per year and less than once a day. The Board considers the Veteran’s reported history of symptomatology related to the service-connected GERD with hiatal hernia. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a 30 percent rating for his GERD with hiatal hernia have been met at any time during the appeal period. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reported worsened symptomatology. The Board has considered the possibility of staged ratings and finds that the proper rating of 10 percent for GERD with hiatal hernia has been in effect for the entire period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Lastly, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was denied in a September 2018 VA rating decision. In his TDIU application, the Veteran specifically asserted that he was unemployable due to his service-connected psychiatric disability, back disability, and bilateral carpal tunnel syndrome. He has not asserted that his GERD causes or contributes to unemployability. Further, the May 2015 and May 2017 VA examiners specifically found that GERD did not impact his ability to work. Therefore, a TDIU claim does not arise out of his claim for a higher rating for his GERD. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD While VA DBQ examination reports for back conditions document no findings of a neurologic abnormalities in May 2015, October 2017, and September 2018, the Veteran asserts his erectile dysfunction had onset during service and/or related to his service-connected PTSD. Review of service treatment records shows the Veteran reported low libido in June 2012. Since separation from active service, a May 2016 VA treatment record documents erectile dysfunction among a list of the Veteran’s current assessments. At a June 2016 VA treatment session, the Veteran reported a problem with penile erection due to medication for psychiatric treatment (sertraline). In the August 2016 VA Form 21-0958 (Notice of Disagreement), the Veteran reported he suffered from erectile dysfunction and low libido during active service and asserts that this condition is directly related to his service-connected PTSD. Most recently in a statement submitted with the January 2017 substantive appeal, the Veteran reported seeking VA treatment for low libido and concern that his psychiatric treatment is not worsening the condition. As such, the Board finds that additional development is needed to determine the etiology of erectile dysfunction on direct and secondary bases. 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for right shoulder disorder, to include as secondary to service-connected GERD with hiatal hernia 3. Entitlement to service connection for left shoulder disorder, to include as secondary to service-connected GERD with hiatal hernia Due to the similar dispositions for the claims on appeal, the Board will address them in a common discussion below. Review of service treatment records shows complaints and treatment for localized bilateral shoulder joint pain in May 2012 and June 2012 following a motorcycle accident as well as from April 2014 to July 2014. Upon DBQ examination for shoulder and arm conditions in May 2015, the Veteran demonstrated full range of bilateral motion and there were no findings of a right or left shoulder disorder or painful motion. Since separation from active service, in the August 2016 VA Form 21-0958 the Veteran reported his right and/or left shoulder pain occurs during all GERD flare ups. In a statement submitted with the January 2017 substantive appeal, the Veteran further reported his chronic shoulder pain had onset during service. A May 2017 VA treatment record documents a work injury in which a staircase fell on his head/left shoulder and there were normal findings following emergency treatment. Most recently, the Veteran was seen for shoulder pain in May 2018 and was recommended to undergo physical therapy for such pain. As such, the Board finds that additional development is needed to determine the existence and etiology of right and/or left shoulder disorders on direct and secondary bases. 38 U.S.C. § 5103A(a); 38 C.F.R. §§ 3.159, 3.303, 3.310; McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician for erectile dysfunction. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: May 2016 VA treatment record includes erectile dysfunction among a list of current assessments. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s erectile dysfunction began during active service or is related to an incident of service, to include documented low libido in June 2012. (b.) Whether it is at least as likely as not that the Veteran’s erectile dysfunction was proximately due to or the result of his service-connected PTSD. (c.) Whether it is at least as likely as not that the Veteran’s erectile dysfunction was aggravated beyond its natural progression by his service-connected PTSD. (d.) Whether it is at least as likely as not that the Veteran’s erectile dysfunction is a neurologic abnormality associated with his service-connected lumbar spine intervertebral disc syndrome with strain. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for right and left shoulder disorders. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: VA treatment records show localized bilateral shoulder joint pain in May 2012 and June 2012 following a motorcycle accident as well as from April 2014 to July 2014. The examiner must opine as to the following for the right shoulder: (a.) Identify whether the Veteran has a current right shoulder disorder or functional impairment due to right shoulder pain (even if resolved since October 1, 2015). (b.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right shoulder disorder or impairment began during active service or is related to an incident of service. (c.) Whether it is at least as likely as not that the Veteran’s right shoulder disorder or impairment was proximately due to or the result of his service-connected GERD with hiatal hernia. (d.) Whether it is at least as likely as not that the Veteran’s right shoulder disorder or impairment was aggravated beyond its natural progression by his service-connected GERD with hiatal hernia. The examiner must also opine as to the following for the left shoulder: (e.) Identify whether the Veteran has a current left shoulder disorder or functional impairment due to right shoulder pain (even if resolved since October 1, 2015). (f.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disorder or impairment began during active service or is related to an incident of service. (g.) Whether it is at least as likely as not that the Veteran’s left shoulder disorder or impairment was proximately due to or the result of his service-connected GERD with hiatal hernia. (h.) Whether it is at least as likely as not that the Veteran’s left shoulder disorder or impairment was aggravated beyond its natural progression by his service-connected GERD with hiatal hernia. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel