Citation Nr: 1807881 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-12 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable initial evaluation for gastroesophageal reflux disease (GERD) with hiatal hernia prior to April 23, 2016, and in excess of 10 percent thereafter. 2. Entitlement to a compensable initial evaluation for sinus disease prior to April 23, 2016, and in excess of 10 percent thereafter. 3. Entitlement to an evaluation in excess of 30 percent for an esophageal stricture associated with GERD with hiatal hernia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a December 2016 video conference hearing. A transcript of that proceeding is associated with the claims file. In March 2014, the Board remanded this case to the RO for the issuance of a Statement of the Case (SOC) regarding the pending increased rating claims for GERD and a sinus disease. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In January 2016, the Board remanded those issues again for a Board hearing. It has now returned to the Board for appellate review. The Board finds that the RO substantially complied with those prior remands. See Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, another remand is nonetheless required for further development, as discussed further below. In an August 2013 decision, the Board granted service connection for GERD with a hiatal hernia and a sinus disease. The September 2013 rating decision on appeal implemented the Board's decision and assigned initial, noncompensable (zero percent) ratings effective July 18, 2005 for both respective disabilities. In a September 2016 rating decision, the RO assigned a 10 percent disability rating for GERD effective April 23, 2016 and a 10 percent disability rating for a sinus disease effective April 23, 2016. The Board has recharacterized the issues on appeal accordingly. During the pendency of the GERD increased rating claim, in a November 2016 rating decision, the RO granted service connection for an esophageal stricture as secondary to GERD with hiatal hernia, and awarded a separate disability rating of 30 percent, effective April 23, 2016. During the Board hearing, the Veteran's representative stated that the Veteran sought an earlier effective date for the 30 percent rating for the esophageal stricture. The Veteran's representative also expressly asked the Board to consider that issue alongside the pending GERD claim on appeal (as opposed to having the Veteran file a separate notice of disagreement to challenge the November 2016 rating decision). See 2016 Board hearing transcript. The Board has recharacterized the issues on appeal accordingly. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In this case, VA's duty to assist in the development of the claims on appeal has not been satisfied. Therefore, a remand is necessary for the following further development. First, after the Board hearing, the Veteran submitted multiple private treatment records regarding the appealed claims. However, those private treatment records and other medical evidence of record reveal the existence of other relevant private treatment records that remain outstanding. For example, a November 2016 private primary care treatment record summarized an October 2016 Mayo Clinic report, which the primary care provider doctor had reviewed; however, the referenced October 2016 Mayo Clinic report itself is not of record. The missing report is relevant because it addressed the possible etiology of the Veteran's chronic cough, one of his main symptoms (as discussed further below in the discussion regarding the need for a VA addendum medical opinion). Moreover, the April 2016 VA esophageal conditions examination report referenced a forthcoming esophagus dilation procedure (regarding his symptom of dysphagia) and EGD at a private hospital two days after the VA examination. Among the private treatment records that the Veteran submitted after the Board hearing was an April 2016 private hospital gastroenterological pathology report from two days after this VA examination. This April 2016 private treatment record referenced dysphagia (among other symptoms) and analyzed gastric and esophagus biopsies, with samples obtained from a surgical procedure. However, the esophagus dilation report and EGD report expressly referenced in the April 2016 VA examination report are not of record. Therefore, on remand, the RO should attempt to obtain all outstanding, relevant private treatment records (and any others that either the Veteran or his representative may identify, including those listed in the remand instructions below), as well as all necessary releases. If they are not available, then the Veteran should be advised of this fact and given an opportunity to submit the records himself, as these records may be relevant to his appeal. Second, the Board finds the April 2016 VA sinusitis and esophageal conditions examinations, as well as the November 2016 VA addendum medical opinion, were inadequate. Specifically, they did not address the full complexity of one of the Veteran's main symptoms, his chronic cough, which has been well-documented throughout the periods on appeal. These reports notably did not consider the conflicting and ambiguous medical evidence of record as to the etiology of this symptom. Indeed, at various times during the periods on appeal, medical providers have attributed this symptom to his GERD, sinus condition, non-service connected medical conditions, and/or medication for a non-service connected condition. See, e.g., October 2005 private treatment record (finding cough was possible adverse effect secondary to Benicar, high blood pressure medication); September 2007 VA primary care outpatient note (attributing chronic cough to GERD); May 2010 private treatment record (finding obstructive sleep apnea may be contributing to cough and GERD); June 2010 pulmonary private treatment record (noting patient denied any change with cough for which he had undergone extensive workup with no definitive etiology); August 2011 gastroenterology private treatment records (noting chronic cough felt to be a combination of GERD and sinus drainage); December 2011 private gastroenterology treatment record (attributing chronic cough to both GERD and sinus drainage issues); April 2013 VA outpatient note (urging follow-up for pulmonologist regarding chronic cough, i.e., suggesting this may be a pulmonary symptom); November 2013 VA outpatient note (suggesting cough may be related to sinus condition); November 2016 private primary care treatment record (summarizing October 2016 Mayo Clinic report finding etiology of chronic cough "seems multi-factorial," including allergies, GERD, and "neurogenic"). Moreover, the April 2016 VA examination reports were inadequate to the extent that they were based upon incomplete reviews of the Veteran's medical record, given the additional, relevant medical evidence that he submitted after the Board hearing. The Board observes that the April 2016 VA esophageal conditions examination report noted that the Veteran's chronic cough had been attributed to acid reflux. Likewise, the April 2016 VA sinusitis VA examination report noted that the cause of his chronic cough "has been thought to be acid reflux, which is a known cause of the cough." However, in both reports, the VA examiner gave no further explanation for these findings and did not consider the conflicting and ambiguous medical evidence regarding the cough etiology, summarized above. Therefore, these etiology findings were conclusory. The Board observes that the January 2012 VA examiner diagnosed chronic cough due to multiple etiologies: acid reflux with presence of hiatal hernia and post-nasal drainage from allergic rhinosinusitis. The examiner explained that acid reflux can cause a cough and also worsening of nasal blockage, leading to worsening rhinosinusitis. However, this examination was conducted for purposes of the Veteran's then-pending service connection claims. Thus, the VA examiner did not attempt to parse out to what extent this symptom was due to his now service-connected GERD with hiatal hernia, sinus disease, and/or esophageal stricture, which is necessary in order to rate these respective disabilities accurately. In addition, the January 2012 VA examination report is now about six years old. In summary, the Board finds that a VA addendum medical opinion is needed specifically to address the etiology of the Veteran's cough, including whether and to what extent it is due to his GERD with hiatal hernia, esophageal stricture, sinus disease, and/or some other factor. (If the VA examiner finds that a VA examination is needed to address this medical question, then the RO must schedule one.) The VA examiner must address the conflicting and ambiguous medical evidence summarized above. This development is needed to appropriately and accurately evaluate the severity of the Veteran's respective service-connected disabilities at issue in this appeal. Third, if upon remand the VA examiner attributes the Veteran's cough to his GERD with hiatal hernia, esophageal stricture, and/or sinus disease, then the Board finds that the relevant issue(s) should be referred for extraschedular consideration. While the Board may not assign an extraschedular evaluation in the first instance, it must consider whether referral for extraschedular consideration is warranted. In this case, the Veteran credibly has reported to various medical professionals and during the Board hearing that his chronic coughing fits (at times characterized as "dry" and at times accompanied by gagging or vomiting) that significantly have impacted his ability to function since at least 2005. The criteria for evaluating the severity of his GERD with hiatal hernia, esophageal stricture, and sinus disease, respectively, do not clearly encompass disabilities due to chronic coughing fits. Moreover, the January 2012 VA examiner competently characterized this symptom as a possible "atypical" manifestation of GERD (although, as explained above, the precise etiology of this symptom is not resolved at this time). As such, the Board finds that extraschedular consideration should be considered with regard to these claims if and only if, upon remand, the VA examiner attributes this symptom to one or more of the conditions at issue in this appeal. If so, then the Board finds that the appropriate appealed claim(s) should be submitted to the Director of Compensation Service, for extraschedular consideration. 38 C.F.R. § 3.321(b) (2017). Finally, any outstanding VA treatment records also should be associated with the file upon remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding outpatient VA treatment records from November 2016 to the present from the VA Eastern Colorado Health Care System, including but not limited to the Colorado Springs CBOC and all other associated outpatient clinics. 2. After obtaining the necessary releases from the Veteran, the RO should request all identified, outstanding private treatment records relevant to the appealed issues, including but not limited to: a. all outstanding private treatment records from Penrose Hospital from 2005 to the present, including the April 2016 esophageal dilation procedure and EGD (referenced in the April 2016 VA esophageal conditions examination report); b. all outstanding private treatment records from Associates in Gastroenterology, P.C. (including specifically those by Dr. R.P.W.) from 2005 to the present; c. all outstanding private treatment records from Endoscopy Center of Colorado Springs, LLC (including but not limited to those by Dr. R.P.W.) from 2005 to the present; d. Centura Health Systems (primary care) from 2005 to the present; e. Oak Springs Family Medical Center (including but not limited to those by Dr. G.S.J.) from 2005 to the present; f. all other private treatment providers identified by the Veteran or his representative in the appropriate release(s). If additional care relevant to the appealed issues is referenced in these private treatment records, then the RO should attempt to obtain records of that care as well. All such requests and any negative responses must be associated with the file. If any such records are unavailable, then the RO should notify the Veteran. 3. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTION UNTIL ALL VA AND PRIVATE RECORDS, TO THE EXTENT POSSIBLE, HAVE BEEN OBTAINED. 4. Return the Veteran's claims file to the April 2016/November 2016 VA esophageal conditions examiner (or to another VA examiner who is a physician, in light of the medical complexity of this case, if that person is no longer available) for an addendum medical opinion. The VA examiner should note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the etiology of the Veteran's coughing symptom with a full supporting rationale, including consideration of the conflicting medical evidence summarized above. In doing so, the examiner specifically should address the following: a. Whether the etiology of this symptom has changed or remained the same during the period from 2005 to April 23, 2016 versus the period from April 23, 2016 to the present, and if so, how; b. If the examiner finds that the coughing has had multiple etiologies at any time, then the examiner must explain in detail the extent to which this symptom is due to each respective etiology or condition, if possible. If any requested opinion is not possible without resort to mere speculation, then the examiner must explain why. If the VA examiner finds that he or she cannot provide the requested opinion without another VA examination, then the RO must schedule the appropriate VA examination with a physician. 5. Then, if and only if, per Step 4 above, the VA examiner attributes the Veteran's coughing symptom to one or more of the service-connected disabilities at issue in this appeal, then the AOJ must refer the appropriate claim(s) to VA's Director of Compensation and Pension Services or the Undersecretary for Benefits for an opinion regarding entitlement to an extraschedular rating for the relevant service-connected condition(s) under the provisions of 38 C.F.R. § 3.321 (b), with consideration of his complaints of coughing fits. 6. After completing the above and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).