Citation Nr: 1807798 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-19 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome of the right wrist. 2. Entitlement to service connection for carpal tunnel syndrome of the left wrist. 3. Entitlement to an initial compensable disability rating for gastroesophageal reflux disease (GERD). REPRESENTATION The Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty for the following periods: March 1968 to March 1970; November 1997 to March 1998; October 2001 to November 2003; and October 2004 to January 2008. Additionally, the Veteran also had service with the National Guard. These matters comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California and Los Angeles, California, respectively. Jurisdiction of the Veteran's claims file resides with the Los Angeles RO. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issues of entitlement to service connection for carpal tunnel syndrome of the right and left wrists are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Additionally, as discussed below, the Board will find that the Veteran is entitled to at least a 30 percent initial rating for his service-connected GERD. However, further development is necessary to determine whether he is entitled to an even higher rating. Thus, this issue is also addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT For the entire period on appeal, the Veteran displayed symptoms of GERD that were productive of considerable impairment of health. CONCLUSION OF LAW The criteria for the assignment of an initial 30 percent rating, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.73, DC 7399-7346 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As indicated above, the Board finds that the Veteran is entitled to an increased initial disability rating of 30 percent for his service-connected GERD for the entire claim period. Accordingly, to this extent, the Veteran's claim is granted. As an initial matter, the Board notes that, in the February 2009 rating decision that granted service connection and assigned an initial noncompensable rating, the RO indicated that the development of GERD was directly related to service. But, subsequently, in the May 2014 Statement of the Case (SOC), the AOJ stated that the Veteran's GERD preexisted service and, at that time, warranted a 10 percent rating. The AOJ went on to state that the Veteran's GERD was aggravated by service, but did not increase in severity. Accordingly, subtracting the percentage of disability at its preexisting state from the degree of disability after aggravation left the Veteran at an initial noncompensable rating. Affording the Veteran the benefit of the doubt, the Board will evaluate the Veteran under the theory of service connection offered in the February 2009 rating decision as it is line with VA's duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993). Moving to the evaluation of the Veteran's GERD, the Board first notes that GERD is not listed in the rating schedule. Presently, the Veteran's GERD is being rated by analogy to hiatal hernia under 38 C.F.R. § 4.114, Diagnostic Code 7346. See 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 7346, a 60 percent rating 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. Comparatively, 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. Lastly, a 10 percent rating is assigned for two or more of the symptoms listed in the criteria for a 30 percent rating but with less severity. In support of its determination that the Veteran's GERD warrants at least a 30 percent disability rating, the Board finds that his GERD has been manifested by dysphagia, pyrosis, and regurgitation, which, in combination, have been productive of considerable impairment of health, throughout the entirety of the claim period. Specifically, in an October 2007 treatment record from Dr. Burstein, the Veteran reported a flare of reflux symptoms. Further, the Veteran stated that he had been waking up choking with an acid taste in his mouth. Dr. Burstein reported that the Veteran was taking his medications of Prevacid, Reglan, and Metamucil as prescribed. Further, in an August 2008 treatment record from Dr. Rahban, the Veteran reported constant discomfort and increased pains in the abdomen associated with a pressure feeling over the epigastric area. Additionally, the Veteran recounted a history of heartburn. Thereafter, in February 2009, the Veteran stated that he was then suffering from the following symptoms: (1) difficulty swallowing and regurgitation, especially at night while lying down; (2) heartburn; (3) acid reflux; and (4) indigestion. In a November 2009 VA examination, the Veteran reported the symptoms of dysphagia, epigastric pain, scapular pain, passing of black-tarry stools, reflux, regurgitation of stomach contents, nausea, and vomiting. The Veteran stated that his symptoms occurred intermittently, but as often as twice a week, with each occurrence lasting 2 hours. At the September 2017 Board hearing, the Veteran testified that he was experiencing the following symptoms: (1) chest pain and discomfort in the ribs; (2) difficulty swallowing; (3) regurgitation; (4) occasional arm and shoulder pain; (5) heartburn; and (6) a feeling of backflow of fluids. See Hearing Tr. at 8-10. After the hearing, in October and December 2017 VA treatment records, the Veteran again reported a feeling of discomfort on his right side, made possibly worse with eating spicy food and drinking coffee. In light of the above, the Board finds that the Veteran's GERD is most appropriately classified as productive of considerable impairment of health throughout the claim period. As such, the Board will assign an initial 30 percent rating for the entirety of the claim period. Although this decision represents a partial grant of the benefit sought on appeal, the Board recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of this decision below. ORDER An initial disability rating of 30 percent, but no higher, for GERD is granted for the entire claim period. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claims. Specifically, regarding the Veteran's GERD increased rating claim, during the September 2017 Board hearing, the Veteran testified that his GERD had worsened in severity since his last VA examination. The record indicates that the Veteran was last afforded a VA examination in regard to his service-connected GERD in November 2009. The Court of Appeals for Veterans Claims (Court) has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, in light of the testimony at the September 2017 hearing, as well as the significant time period since the last VA examination, the Board finds that a new examination must be conducted so that an additional evaluation of the current state of the Veteran's disability can be based upon a more accurate disability picture. Moving to the Veteran's claims for service connection for carpal tunnel syndrome of both wrists, a VA medical opinion was obtained in February 2012. After reviewing the Veteran's claims file, a VA clinician opined that it was less likely than not that the Veteran's carpal tunnel syndrome of the bilateral wrists was incurred in or caused by service. In support of this opinion, the clinician first recounted that the Veteran worked for the State of California's Department of Motor Vehicles (DMV) from 1983 to 1997, primarily working on a computer terminal. The clinician then stated that, in an April 1997 worker's compensation evaluation, Dr. Burstein noted that the Veteran reported pain in both wrists, radiating to the forearm, that increased with prolonged video display terminal use. This medical history, in combination with the lack of reports of wrist pain in service, led the clinician to conclude that the Veteran's wrist symptoms-later diagnosed as carpal tunnel syndrome-clearly began prior to service and were associated with the computer work the Veteran did with the DMV from 1983 through 1997. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In the instant case, the Board finds the February 2012 VA medical opinion inadequate for adjudicative purposes. Specifically, in the April 1997 evaluation from Dr. Burstein cited by the February 2012 VA clinician, the Veteran did complain of wrist pain, but did not relate it to prolonged video display terminal use at work. Rather, the Veteran related his video display use to increased neck pain and stiffness. Accordingly, the Board may not rely upon the February 2012 VA medical opinion as it may be based upon an inaccurate factual premise. Further, in June 2014, Dr. Woo, a VA clinician, stated that he had been made aware of the Veteran's military experience and opined that the Veteran's military duties as a pallbearer contributed to the development of his diagnosed carpal tunnel syndrome. Unfortunately, Dr. Woo's opinion is also inadequate for adjudicative purposes as he provided no rationale for his opinion. Accordingly, remand is also warranted for the Veteran's service connection claims so that the Veteran may be afforded a new VA examination and medical opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity of his GERD. The Veteran's claims folder should be made available to, and be reviewed by, the examiner in conjunction with the examination. Any disability benefits questionnaires (DBQs) deemed relevant by the examiner should be completed. All indicated tests and studies should be performed and the results reported in detail. All findings and a fully articulated medical rationale for any opinions expressed should be set forth in the examination report. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his carpal tunnel syndrome of both wrists. The clinician should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. The clinician should then state whether it is at least as likely as not (50 percent probability or more) that the Veteran's carpal tunnel syndrome had its onset in, was caused by, or is otherwise related to service. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim for service connection, including: * The testimony at the September 2017 Board hearing; * The Veteran's May 2014, March 2010, February 2010, and October 2009 statements regarding his in-service duties as a member of the Blue Eagles Honor Guard; * Dr. Woo's June 2014 opinion; * A February 2010 memorandum by Master Sergeant O.O.; and * An April 1997 evaluation completed by Dr. Burstein. For any opinion provided, the clinician should provide a complete rationale. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs