Citation Nr: 18106953 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 08-22 204 DATE: June 1, 2018 ORDER Entitlement to higher initial disability ratings for gastroesophageal reflux disease (GERD), currently rated as 10 percent disabling since July 1, 2006, and 30 percent since March 20, 2009, is denied. Entitlement to an initial disability rating of 30 percent for hypothyroidism is granted from August 29, 2007, to October 12, 2009. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism is denied prior to August 29, 2007, and since October 13, 2009. REMANDED Entitlement to service connection for sciatica and right hip nerve damage, to include as secondary to the service-connected low back strain, is remanded. Entitlement to service connection for sciatica and left hip nerve damage, to include as secondary to the service-connected low back strain, is remanded. Entitlement to a disability rating in excess of 10 percent for low back strain is remanded. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. Entitlement to higher initial disability ratings for traumatic arthritis of the left ankle, currently rated as 10 percent from July 1, 2006, to May 30, 2007, 10 percent since August 1, 2007, and 20 percent since October 13, 2009, is remanded. Entitlement to an initial disability rating in excess of 20 percent for distal left peroneal neuropathy is remanded. Entitlement to a total rating based on individual unemployability due to the service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 20, 2009, the Veteran’s GERD was not manifested by dysphagia. 2. Since March 20, 2009, the Veteran’s GERD has not been manifested by moderate anemia or other symptom combinations productive of severe impairment of health. 3. From August 29, 2007, to October 12, 2009, the Veteran’s hypothyroidism was manifested by fatigue, constipation, and mental sluggishness. 4. Prior to August 29, 2007, and since October 13, 2009, the Veteran’s hypothyroidism was not manifested by both constipation and mental sluggishness.   CONCLUSIONS OF LAW 1. The criteria for entitlement to higher initial disability ratings for GERD, currently rated as 10 percent disabling since July 1, 2006, and 30 percent since March 20, 2009, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Codes (DCs) 7399-7346. 2. From August 29, 2007, to October 12, 2009, the criteria for entitlement to an initial disability rating of 30 percent for hypothyroidism have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7903. 3. Prior to August 29, 2007, and since October 13, 2009, the criteria for entitlement to an initial disability rating in excess of 10 percent for hypothyroidism have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, DC 7903. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1986 to June 2006. These matters are on appeal from July 2006, June 2008, November 2009, March 2012, and December 2013 rating decisions. In March 2009, the Veteran and his wife testified at a videoconference Board hearing on the GERD, hypothyroidism, and left ankle issues. The Veterans Law Judge who conducted the March 2009 hearing has since retired. The Veteran was sent a letter in October 2017 asking him if he wanted another Board hearing. The Veteran did not respond to the letter, and thus he is assumed to not want another Board hearing. For the remaining issues on appeal, the Veteran requested a Board hearing in his March 2014 Substantive Appeal. In a subsequent December 2016 statement, the Veteran withdrew his hearing request. In July 2009 and December 2013, the Board remanded the GERD, hypothyroidism, and left ankle issues to the Agency of Original Jurisdiction (AOJ) for further development. New evidence was added to the Veteran’s claims file since the Statement of the Cases and Supplemental Statements of the Case. No waiver from the Veteran or his representative is of record, and the AOJ has not reviewed this new evidence in the first instance. The new evidence does not contain any information regarding the issues decided below. A waiver is not needed for the issues being remanded, as the AOJ will readjudicate these issues upon remand. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. 1. Entitlement to higher initial disability ratings for GERD, currently rated as 10 percent disabling since July 1, 2006, and 30 percent since March 20, 2009. The Veteran is currently rated, by analogy, under 38 C.F.R. § 4.114, DC 7346 for his GERD. In this regard, if a veteran has an unlisted disability, as in this case, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (2017) (providing specific means of listing DC for unlisted disease or injury). He seeks higher initial disability ratings. DC 7346 provides ratings for hiatal hernia. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. The Board will begin by addressing the 10 percent disability rating in effect prior to March 20, 2009. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his GERD prior to March 20, 2009. Here, there is no evidence of dysphagia prior to March 20, 2009, to warrant a higher disability rating. 38 C.F.R. § 4.114, DC 7346. Specifically, at the May 2006 and August 2007 VA examinations, the Veteran denied experiencing any dysphagia. The VA and private treatment records dated prior to March 20, 2009, do not provide contrary evidence to that obtained at the VA examinations. The March 20, 2009, Board hearing is the first evidence of dysphagia in the record. A 30 percent rating requires, in pertinent part, evidence of dysphagia, pyrosis, and regurgitation. 38 C.F.R. § 4.114, DC 7346; see Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met). The evidence dated prior to March 20, 2009, does not establish that the Veteran’s GERD was manifested by dysphagia. Thus, an initial disability rating in excess of 10 percent prior to March 20, 2009, is not warranted for the GERD. 38 C.F.R. § 4.114, DC 7346. The Board will now address the 30 percent disability rating in effect since March 20, 2009. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his GERD since March 20, 2009. Here, there is no evidence of moderate anemia or other symptom combinations productive of severe impairment of health since March 20, 2009, to warrant a higher disability rating. 38 C.F.R. § 4.114, DC 7346. At the October 2009 and April 2016 VA examinations, the VA examiners found that the Veteran’s GERD was not manifested by anemia. The October 2009 VA examiner found that the Veteran’s overall general health was good. The April 2016 VA examiner found that the Veteran experienced GERD symptoms less than once per day. The Veteran experienced ongoing significant epigastric and esophageal pain with only occasional regurgitation. The Board does not find these symptoms to be severe. The VA and private treatment records dated since March 20, 2009, do not provide contrary evidence to that obtained at the VA examinations. A 60 percent rating requires, in pertinent part, evidence of moderate anemia or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346; see Melson, 1 Vet. App. at 334. The evidence dated since March 20, 2009, does not establish that the Veteran’s GERD was manifested by moderate anemia or other symptom combinations productive of severe impairment of health. Thus, an initial disability rating in excess of 30 percent since March 20, 2009, is not warranted for the GERD. 38 C.F.R. § 4.114, DC 7346. The Board has considered the application of the remaining DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted for the Veteran’s GERD, but finds none are raised by the medical evidence. In forming this decision, the Board has considered the lay statements from the Veteran and his spouse. The Board notes that in adjudicating a claim, the competence and credibility of the layperson must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and his spouse are competent to give evidence about what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s and his spouse’s competent and credible beliefs that the Veteran’s disability is worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. 2. Entitlement to an initial disability rating in excess of 10 percent for hypothyroidism. The Veteran is in receipt of a 10 percent initial disability rating under 38 C.F.R. § 4.119, DC 7903 for his hypothyroidism. He seeks a higher initial disability rating. DC 7903 provides ratings for hypothyroidism. Hypothyroidism with fatigability, or; continuous medication required for control, is rated 10 percent disabling. Hypothyroidism with fatigability, constipation, and mental sluggishness is rated 30 percent disabling. Hypothyroidism with muscular weakness, mental disturbance, and weight gain is rated 60 percent disabling. Hypothyroidism with cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness is rated 100 percent disabling. 38 C.F.R. § 4.119. In applying the above law to the facts of the case, the Board finds that the Veteran is entitled to a higher initial disability rating of 30 percent from August 29, 2007, to October 12, 2009, for his hypothyroidism. During this time period, the Veteran’s hypothyroidism was manifested by fatigability, constipation, and mental sluggishness. 38 C.F.R. § 4.119, DC 7903. Specifically, at the August 29, 2007, VA examination, the Veteran reported fatigue, constipation, decreased concentration, and forgetfulness. The Veteran also reported mental sluggishness, to include decreased concentration and forgetfulness, at his March 2009 Board hearing and in his July 2008 Substantive Appeal. However, at his May 2006 VA examination, the Veteran did not report mental sluggishness or constipation. At the October 13, 2009, VA examination, the Veteran did not report mental sluggishness or constipation. The October 2009 VA examiner found that the Veteran’s hypothyroidism was a minor illness without any significant problems. The April 2016 VA examination did not document constipation and mental sluggishness. The Veteran’s VA and private treatment records also do not document mental sluggishness prior to August 29, 2007, and since October 13, 2009. Thus, as the Veteran’s hypothyroidism was manifested by fatigability, constipation, and mental sluggishness, an initial disability rating of 30 percent is warranted from August 29, 2007, to October 12, 2009. 38 C.F.R. § 4.119, DC 7903. However, prior to August 29, 2007, and since October 13, 2009, the criteria for an initial disability rating in excess of 10 percent for hypothyroidism have not been met. Prior to August 29, 2007, and since October 13, 2009, the hypothyroidism was not manifested by both constipation and mental sluggishness to warrant a higher rating. 38 C.F.R. § 4.119, DC 7903; see Melson, 1 Vet. App. at 334. The Board has considered the application of the remaining DCs under the current version of the regulation in an effort to determine whether a higher rating may be warranted for the Veteran’s hypothyroidism, but finds none are raised by the medical evidence. In forming this decision, the Board has considered the lay statements from the Veteran and his spouse. The Board notes that in adjudicating a claim, the competence and credibility of the layperson must be considered. See Buchanan, 451 F.3d at 1331; Washington, 19 Vet. App. at 368-69. The Board acknowledges that the Veteran and his spouse are competent to give evidence about what they observe or experience. For example, the Veteran is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno, 6 Vet. App. at 465. The Veteran’s and his spouse’s competent and credible beliefs that the Veteran’s disability is worse than the assigned ratings, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. REASONS FOR REMAND Initially, the AOJ last associated with the Veteran’s claims file records of his VA treatment in November 2016. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claims are adjudicated on the basis of an evidentiary record that is as complete as possible. 1. Entitlement to service connection for sciatica and right hip nerve damage, to include as secondary to the service-connected low back strain, is remanded. 2. Entitlement to service connection for sciatica and left hip nerve damage, to include as secondary to the service-connected low back strain, is remanded. Regarding the bilateral sciatica claims, the Board cannot make a fully-informed decision on the issue because the February 2012 VA spine examination provided conflicting evidence as to whether the Veteran has a current diagnosis. At the examination, the VA examiner found that the Veteran had positive straight leg raising tests and evidence of radicular pain; however, the examiner found that the Veteran did not have a current diagnosis of radiculopathy. The medical records also do not contain a current diagnosis. Additionally, the February 2012 examiner provided a negative nexus opinion regarding secondary service connection, but only addressed the causation element and not the aggravation element. A VA neurological examination with a medical opinion must be obtained upon remand. 3. Entitlement to an increased disability rating for low back strain, currently rated as 10 percent disabling, is remanded. 4. Entitlement to an increased disability rating for left knee patellofemoral syndrome, currently rated as 10 percent disabling, is remanded. 5. Entitlement to an increased disability rating for right knee patellofemoral syndrome, currently rated as 10 percent disabling, is remanded. 6. Entitlement to higher initial disability ratings for traumatic arthritis of the left ankle, currently rated as 10 percent from July 1, 2006, to May 30, 2007, 10 percent since August 1, 2007, and 20 percent since October 13, 2009, is remanded. Regarding the low back, knees, and left ankle claims, the contemporaneous VA examinations of record do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements and pain on weight-bearing testing. The April 2016 contemporaneous VA examination of the Veteran’s left ankle disability also does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. 7. Entitlement to an initial disability rating in excess of 20 percent for distal left peroneal neuropathy is remanded. The last VA examination to assess the current severity of the Veteran’s distal left peroneal neuropathy was in February 2012. This examination was scheduled for the purposes of establishing service connection, which has since been established. The February 2012 examination was also a VA spine examination and not a VA neurological examination. The Veteran should be provided an opportunity to report for a VA neurological examination to ascertain the current severity and manifestations of this disability. 8. Entitlement to a TDIU is remanded. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. The Veteran’s Vocational Rehabilitation folder documents that he is currently unemployed due, in pertinent part, to his service-connected knees, low back, and left ankle disabilities. Thus, the issue of unemployability is raised by the record and the TDIU issue is added to the appeal. The Veteran has not been provided with a proper duty-to-assist notice letter for his TDIU claim, nor has any development been done with respect to this claim. The Veteran must be provided with this requisite notice and the claim must be adjudicated in the first instance upon remand. The matters are REMANDED for the following actions: 1. Provide the Veteran with notice of the requirements for entitlement to a TDIU, including VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability). 2. Obtain the Veteran’s pertinent VA treatment records dated since November 2016. 3. Schedule the Veteran for a neurological examination by an appropriate clinician to determine the nature and etiology of any radiculopathy, sciatica, or nerve damage of the bilateral legs and hips. The examiner must address the conflicting findings at the February 2012 VA examination, where the Veteran had positive straight leg raising tests and radicular pain, but no diagnosis of radiculopathy. If the Veteran has a current diagnosis, the examiner is asked to determine whether it is at least as likely as not (1) proximately due to the service-connected low back strain, or (2) aggravated beyond its natural progression by the service-connected low back strain. 4. Schedule the Veteran for an examination of the current severity of his low back strain. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back strain alone and discuss the effect of the Veteran’s low back strain on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination of the current severity of his bilateral knee patellofemoral syndrome. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knee patellofemoral syndrome alone and discuss the effect of the Veteran’s bilateral knee patellofemoral syndrome on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination of the current severity of his traumatic arthritis of the left ankle. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the traumatic arthritis of the left ankle alone and discuss the effect of the Veteran’s traumatic arthritis of the left ankle on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Schedule the Veteran for a neurological examination by an appropriate clinician to determine the current severity of his service-connected distal left peroneal neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the distal left peroneal neuropathy alone and discuss the effect of the Veteran’s distal left peroneal neuropathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, to include the TDIU issue. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel