Citation Nr: 1807155 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 12-05 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for dyspnea. 3. Entitlement to service connection for acute gastroenteritis. 4. Entitlement to service connection for chronic cough. 5. Entitlement to service connection for asthma. 6. Entitlement to service connection for left shoulder impingement. 7. Entitlement to service connection for eczema. 8. Entitlement to service connection for insomnia. 9. Entitlement to service connection for headaches. 10. Entitlement to service connection for epistaxis. 11. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 15, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty from December 1993 to December 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The matters are currently under the jurisdiction of the Phoenix RO. All issues except the issue of entitlement to a rating in excess of 10 percent for GERD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT The Veteran's GERD is manifested by symptoms of occasional recurrent epigastric distress with dysphagia and regurgitation. There is no competent evidence of considerable impairment of health or material weight loss and hematemesis or melena with moderate anemia. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for GERD have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, Diagnostic Code 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Increased Rating The Veteran contends that his GERD symptoms entitle him to a rating in excess of 10 percent. In an August 2008 rating decision, the RO granted the Veteran's claim for gastroesophageal reflux disease with a noncompensable rating, effective January 18, 2008. A January 2012 rating decision increased the Veteran's rating to 10 percent, effective January 18, 2008, based on VA treatment records which indicate regurgitation of acid material into his hypopharynx. The Veteran's GERD is rated by analogy to hiatal hernia, under Diagnostic Code (DC) 7399-7346. 38 C.F.R. § 4.114. The Board finds that DC 7346 best approximates the anatomical localization and symptomatology of the Veteran's GERD and that there are no other potential diagnostic codes under which to accurately rate his disability. Under Diagnostic Code 7346, a 10 percent rating is warranted when the Veteran has two or more of the symptoms for a 30 percent evaluation, but of less severity. A 30 percent rating is assigned when a hiatal hernia causes persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned when a hiatal hernia causes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The June 2008 VA examination report noted that the Veteran's reflux was well controlled on Ranitidine A December 2008 correspondence from Dr. L.S. of the San Antonio VA Healthcare system indicates that the Veteran carries a diagnosis of nonulcer dyspepsia and GERD. VA treatment records indicate that the Veteran is on therapy for his reflux. He denies nocturnal reflux symptomatology. October 2014 treatment note indicates that the Veteran's heartburn and reflux are controlled for the most part and he denied any symptoms of abdominal pain, nausea, vomiting or diarrhea. He underwent upper GI endoscopies (EGD) in August 2008 and March 2012. The August 2008 EGD was normal and the March 2012 found that the Veteran had a hiatal hernia. The Veteran was afforded a VA examination in February 2011 where the examiner noted that the Veteran was diagnosed with reflux in 1991 and was prescribed Zantac. He noted that the Veteran is currently prescribed Pantoprazole, 40 mg daily and Simethicone. The Veteran complained of burning substernal pain which awakens him approximately 2 times a week and which is also accompanied by regurgitation of an acid material. He also endorsed symptoms of abdominal bloating; multiple loose soft bowels daily; grinding noises in his supraumbilical area and vague upper abdominal pain. He denied any weight changes in the previous year. On examination, the examiner noted that the Veteran had normal bowel sounds and there were no organs, masses or tenderness. The Board finds that the currently assigned 10 percent rating most accurately represents his current GERD symptoms. In that regard, he endorses symptoms of regurgitation, dysphagia and substernal pain. The Board likewise finds that the Veteran is not entitled to a rating in excess of 10 percent. The evidence does not show that these above listed symptoms cause considerable impairment of health necessary for a 30 percent rating. Further, the evidence does not reflect material weight loss, hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health to warrant a 60 percent rating at any time during the appeal. The Veteran's noted complaints, and, by extension, a lack of other reported symptomatology, is of probative value because the Veteran's contemporaneous statements regarding symptomatology were made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. As noted above, the Veteran has reported doing well on medication, and no clinician has determined that his GERD has caused considerable impairment of health. The Board acknowledges that a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). However, there is no competent credible evidence of record that without medication, the Veteran's GERD would cause considerable impairment of health. The Board has considered the Veteran's lay assertions regarding severity and finds that they support the currently assigned disability evaluation, but no higher. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. ORDER Entitlement to an initial rating in excess of 10 percent for GERD is denied. (CONTINUED ON NEXT PAGE) REMAND The Veteran contends that he is entitled to service connection for a left shoulder disability because his left shoulder pain began in service and has continued post-service. The Veteran was afforded a VA examination in February 2011. The February 2011 examiner opined that the Veteran's shoulder problem was not caused by or a result of service. However, no rationale was provided. The Board finds that a remand is necessary to obtain an addendum opinion which provides supporting rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the efforts to provide an examination, an adequate examination must be provided). At the December 2010 Decision Review Officer (DRO) hearing, the Veteran testified that he believed his insomnia may be secondary to his service-connected depression and his epistaxis may be secondary to his service-connected rhinitis. Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2017); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has not been afforded a VA examination regarding his insomnia claim. The Veteran was afforded a VA examination regarding his epistaxis in February 2011 where he reported nose bleeds on his right side primarily after he blows his nose. He also reported difficulty breathing, sinus headaches, sinus mucous drainage and infections. The examiner stated that epistaxis was not noted on the current exam and therefore no nexus opinion would be provided. As there are no opinions of record which addresses this theory of entitlement, the Board finds that a remand is necessary to address whether the Veteran's insomnia or epistaxis are secondary to any of his service-connected disabilities. The February 2011 VA examiner stated that he could not provide a medical opinion regarding whether the Veteran's headaches (unrelated to his sinusitis) were related to service since it was beyond the scope of the Ear, Nose, and Throat (ENT) examination. The examiner recommended that an opinion be obtained through general medicine or neurology. The Veteran was afforded a VA headaches examination in June 2013 where the examiner found that the Veteran suffered from tension headaches since 1994. The examiner opined that it was less likely than not that the Veteran's tension headaches were due to or the result of his service-connected depressive disorder. The examiner reasoned that the Veteran's tension headaches have multiple causes including sinus issues, anxiety and prescription medication. However, the Board finds that the opinion is inadequate for adjudication purposes. In that regard, although the examiner noted that the Veteran's tension headaches were present in 1994 (active duty), no opinion regarding direct service connection was provided. Further, although the examiner stated that the Veteran's headaches may be due to prescription medication, he did not opine whether the headaches were secondary to another service-connected disability for which the prescription medication are taken. Therefore, the Board finds that a remand is necessary to obtain an addendum opinion which thoroughly addresses all theories of entitlement. Service treatment records indicate that the skin papules were noted in May 1994. The Veteran was treated for hives in May 1995 and a reference to eczema was noted in March 1996. The Veteran was treated again for hives in August 1997. The February 2011 VA examiner opined that the Veteran's eczema was less likely as not related to service. The examiner reasoned that there was no evidence that the single occurrence of bumps that the Veteran was seen for in May 1994 were connected to any current skin condition. He opined that this was an isolated event. However, the Board finds that the examiner's opinion is based on an inaccurate factual background and therefore is inadequate for adjudication purposes. While the examiner notes the Veteran's multiple in-service skin complaints, he concludes that based on a single event, there is no connection between the Veteran's current disability and service. The Board finds that a remand is necessary to afford the Veteran a VA examination by a dermatologist who can provide a medical opinion supported by appropriate rationale. The Veteran contends that his asthma is related to in-service respiratory problems, including allergic rhinitis, sinusitis and bronchitis. The February 2011 VA examiner noted the Veteran's 2006 asthma diagnosis and number of other allergic problems, namely allergic rhinitis. "These are 2 distinct pathological entities. There is no mention of asthma while [the Veteran] was in the service. No treatment for asthma while [the Veteran] was in service, and no diagnostic evaluation for asthma while he was in the service; therefore it is less likely as not that his asthma is related to his military service or related to his other allergic problems, namely allergic rhinitis." However, the Board finds that a remand is necessary to obtain an addendum opinion which properly addresses the theory of secondary service connection. Further, the Board finds that an opinion concerning the Veteran's claim for dyspnea (difficulty or labored breathing) and chronic cough may be related to his asthma claim and finds that a remand is necessary to address the claims together. See December 2010 DRO Hearing summary. The Veteran claimed entitlement to service connection for gastroenteritis. At the December 2010 hearing, the Veteran claimed that he suffers from abdominal pain and diarrhea due to the medication (Accutane) he takes for his service-connected acne. However, the February 2011 VA examiner provided an opinion regarding irritable bowel disease. Specifically, the examiner opined that the Veteran's in-service short term diarrheal symptoms, diagnosed as acute gastroenteritis, had none of the features of irritable bowel syndrome. The examiner further opined that the Veteran did not start Accutane until 2004 and noted that the Veteran complained of abdominal complaints prior to 2004 so "it is not reasonable or likely that the Accutane was the cause of this, because it began before the Accutane." The Board finds that a remand is necessary to provide an opinion regarding what disease is related to the Veteran's complaints of abdominal pain and diarrhea and also whether it is directly or secondarily related to service. The Veteran seeks TDIU prior to April 15, 2015. As there remains pending service connection issues on appeal, the outcome of which may affect the individual and overall combined disability rating, the Board finds that the issues are inextricably intertwined, and as such must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Once the service connection issues are decided, TDIU, prior to April 15, 2015, must be revisited, to include whether referral for extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the February 2011 examiner (or an appropriate medical professional) regarding the Veteran's left shoulder disability. The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disability, diagnosed as left proximal biceps tendonitis, is caused by or is otherwise related to service. The examiner should provide a complete rationale for the conclusions reached. The matter is being returned for an addendum opinion because the February 2011 examiner did not provide any supporting rationale for his opinion. 2. Schedule the Veteran for a VA examination concerning his claim for entitlement to service connection for gastroenteritis. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file and offer an opinion as to the following questions: (a) Opine whether the Veteran has a current diagnosis of gastroenteritis or other gastrointestinal disease. The Veteran has complained of symptoms of abdominal pain and diarrhea. (b) If so, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disease was caused by or is otherwise related to service. (c) If the current gastrointestinal disease is not caused by or related to service, opine whether it is at least as likely as not (50 percent probability or greater) that the disease is caused or aggravated by the medication, Accutane, which the Veteran takes for his acne. The examiner should provide a complete rationale for the conclusions reached. 3. Schedule the Veteran for a VA examination with a dermatologist concerning his claim for entitlement to service connection for eczema. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file and offer an opinion as to the following questions: (a) Opine whether the Veteran has a current diagnosis of eczema. The February 2011 examiner stated that the Veteran has a diagnosis of xerosis (dry skin) and that there was no indication that he has any other dermatological condition. (b) If so, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's eczema was caused by or is otherwise related to service. The examiner's attention is directed to, but not limited to the following: Service treatment records in May 1994, May 1995 and August 1997 which indicate references to skin papules, hives and eczema. The examiner should provide a complete rationale for the conclusions reached. 4. Schedule the Veteran for a VA examination concerning his claims for insomnia and epistaxis. The Veteran's electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the electronic claims file and offer an opinion as to the following questions: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's insomnia is a manifestation of the Veteran's service connected depression or whether the insomnia is at least as likely as not a condition that is 'separate and distinct' from the depression. (b) If the Veteran's insomnia is a separate and distinct disability, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's insomnia was caused by his service-connected depression. (c) If the Veteran's insomnia is a separate and distinct disability, whether it is at least as likely as not (50 percent probability or greater) that the Veteran's insomnia is aggravated (i.e., worsened) by his service-connected depression. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's insomnia found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected depression. (d) Whether it is at least as likely as not (a 50 percent probability or greater) that Veteran's epistaxis is caused by his service-connected rhinitis or sinusitis. (e) If not, whether it is at least as likely as not that Veteran's epistaxis is aggravated (i.e., worsened) by his service-connected rhinitis or sinusitis. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's epistaxis found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected rhinitis or sinusitis. Service treatment records indicate that the Veteran's rhinitis caused congestion, bloody nose, sneezing and sniffling. The February 2011 examiner indicated that he could not provide an opinion regarding the Veteran's epistaxis since it was not present at the time of the examination. The Board is requesting that the examiner address the Veteran's lay statements regarding his competent reports of epistaxis regardless of whether he has current manifestations. The examiner should provide a complete rationale for the conclusions reached. 5. Obtain an addendum opinion from the June 2013 examiner (or if unavailable, an appropriate medical professional) regarding the Veteran's claim for headaches (not associated with his sinusitis). The Veteran's electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels that another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's tension headaches are caused by or otherwise related to active service. The June 2013 examiner noted that the Veteran was diagnosed with tension headaches in 1994 (during a period of active duty). (b) Whether it is at least as likely as not (a 50 percent probability or greater) that Veteran's headaches (unrelated to sinusitis) are caused by any of his service-connected disabilities, including those for which he takes prescription medication. (c) If not, whether it is at least as likely as not that Veteran's headaches (unrelated to sinusitis) are aggravated (i.e., worsened) by any of his service-connected disabilities, including those for which he takes prescription medication. If aggravation is found, the examiner should address the following medical issues to the extent possible: i. the baseline manifestations of the Veteran's headaches found prior to aggravation; and ii. the increased manifestations which, in the examiner's opinion, are proximately due to a service-connected disability. The examiner should provide a complete rationale for the conclusions reached. The June 2013 VA examiner reasoned that the Veteran's tension headaches have multiple causes including sinus issues, anxiety and prescription medication. The Veteran is already service connected for sinusitis with headaches. However, the examiner did not opine whether any of the Veteran's service-connected disabilities for which he is prescribed medication causes or aggravates his tension headaches. 6. Ensure that the examination reports are adequate. If they are deficient in any manner, return the reports to the examiner(s) as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims, including whether TDIU, prior to April 15, 2015, is warranted on either a schedular or extraschedular basis. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs