Citation Nr: 19123791 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-54 524 DATE: April 2, 2019 ORDER Entitlement to a rating in excess of 10 percent prior to November 16, 2015 and in excess of 60 percent thereafter for gastroesophageal reflux disease (GERD) is denied. Entitlement to a 20 percent rating for degenerative arthritis of the left hand is granted. Entitlement to a 20 percent rating for degenerative arthritis of the right hand is granted. Entitlement to a total disability rating for individual unemployability (TDIU) is granted effective November 16, 2015. REMANDED Entitlement to an extraschedular TDIU prior to November 16, 2015 is remanded. FINDINGS OF FACT 1. Prior to November 16, 2015, the Veteran’s GERD manifested by persistently recurrent epigastric distress with regurgitation. 2. Beginning November 16, 2015, the Veteran’s GERD manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 3. The Veteran’s degenerative arthritis of the left hand manifested by degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joints with occasional incapacitating exacerbations. 4. The Veteran’s degenerative arthritis of the right hand manifested by degenerative arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joints with occasional incapacitating exacerbations. 5. The Veteran’s service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation since November 16, 2015. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to November 16, 2015 and in excess of 60 percent thereafter for GERD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code (DC) 7399-7346 (2018). 2. The criteria for a disability rating of 20 percent degenerative arthritis of the left hand have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5228-5003 (2018). 3. The criteria for a disability rating of 20 percent degenerative arthritis of the right hand have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5228-5003 (2018). 4. The criteria for entitlement to a schedular TDIU have been met beginning November 16, 2015. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1979 to August 1986 and November 2003 to May 2005. The Board notes on the April 2017 Notice of Disagreement (NOD) that the Veteran requested review of the effective date of the award and the evaluation of the disability. The Veteran has stated he disagrees with the level of rating not the date service connection was granted. Therefore, the Board finds that the effective date issue is substantially encompassed within the broader issue of entitlement to higher ratings for GERD and bilateral hand arthritis. Increased Rating 1. Entitlement to a rating in excess of 10 percent prior to November 16, 2015 and in excess of 60 percent thereafter for GERD The Veteran filed a claim for an increased evaluation on February 4, 2016. The Reginal Office granted an increased evaluation of the Veteran’s GERD to 60 percent effective November 16, 2015. On appeal, the Veteran contends the symptoms of GERD warrant a rating in excess of 10 percent prior to November 16, 2015 and in excess of 60 percent thereafter. Accordingly, the Board will consider the propriety of each rating during the appellate period. The Veteran is currently assigned a 60 percent evaluation for GERD pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that an unlisted digestive condition (Diagnostic Code 7399) is rated under the criteria for hernia hiatal (DC 7346). See 38 C.F.R. § 4.20. Under Diagnostic Code 7346, a 10 percent evaluation is contemplated for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating contemplates pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Turning to the evidence, the Veteran was afforded a VA examination in May 2016. The Veteran endorsed symptoms of persistently recurrent epigastric distress, pyrosis, regurgitation, pain, sleep disturbance caused by esophageal reflux, nausea, vomiting, and melena with moderate anemia. The examiner noted no other pertinent physical findings, complications, or conditions related to the Veteran’s GERD. While VAMC medical records have been received, the treatment notes do not indicate any ongoing active medical intervention for his GERD. Further, the Board notes the Veteran has not made any specific arguments alleging worsening of his GERD or other symptoms warranting an increased evaluation. Based on the foregoing, the Board finds that a 10 percent rating prior to November 16, 2016 and a 60 percent rating thereafter, but no higher, is appropriate for the service-connected GERD. The Veteran has not demonstrated any worsening of symptoms since the May 2016 VA examination. Thus, a higher rating under Diagnostic Code 7346 is not warranted, to include under any other potentially applicable diagnostic codes for this disability. 2. Entitlement to a 20 percent rating for degenerative arthritis of the left and right hands The Veteran contends the degenerative arthritis of the bilateral hands warrants a rating in excess of the 10 percent assigned. Due to the similar nature of the right- and left-hand disability ratings, both rating will be discussed together. The Veteran is currently in receipt of a 10 percent rating for each hand pursuant to 38 C.F.R. § 4.71a, DC 5228-5003. Under DC 5003, a 10 percent evaluation is contemplated for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is contemplated for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joints with occasional incapacitating exacerbations. Turning to the evidence, the Veteran was afforded a VA examination in May 2016. The Veteran endorsed flare-ups which were described as severe pain with locking of the fingers and spasms with paresthesias bilaterally. The Veteran reported he had difficulties picking up and holding items. The Veteran also stated his hand pain will prevent sleeping and interferes with handwriting. Range of motion testing of the right hand showed overall normal ranges with the exceptions of thumb flexion to 40 degrees MCP, and of the index, long, ring, and little fingers to 90 degrees PIP. There was a 0.5cm gap between the pad of the thumb and the fingers. Range of motion testing of the left hand showed overall normal ranges with the exceptions of thumb flexion to 50 degrees MCP, and of the index, long, ring, and little fingers to 90 degrees PIP. There was a 0.3cm gap between the pad of the thumb and the fingers. The examiner found during flare-ups the Veteran’s range of motion of the left and right hand would be further reduced due to the pain, fatigue, and weakness. Notably max flexion of the left and right thumbs would be limited to 30 degrees. In consideration of the Veteran’s reported flare-ups, the May 2016 VA examination is consistent with a finding of a higher, 20 percent, rating under DC 5003 for degenerative arthritis with occasional incapacitating exacerbations for both the left and right hands. A higher rating is not warranted unless the Veteran demonstrated favorable ankylosis of two or more digits of one hand. While the record demonstrates he has issues with gripping and range of motion during flare-ups, the record does not demonstrate ankylosis or a functional capacity analogous to ankylosis. The preponderance of the evidence supports assigning 20 percent rantings, but no higher, for the Veteran’s left and right degenerative arthritis of the hands. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a TDIU effective November 16, 2015 VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence shows that the Veteran was service connected for GERD rated as 10 percent disabling from September 21, 2008 and 60 percent disabling effective November 16, 2015, PTSD rated as 30 percent disabling and degenerative arthritis of the left and right hands rated each as 20 percent disabling. The Veteran is individually rated as 10 percent disabled for each of the following: left shoulder tendonitis, lumbar strain, right knee strain, left knee strain, and tinnitus. The Veteran is also service connected for noncompensable allergic rhinitis. The Veteran’s combined disability rating was 50 percent from September 21, 2008, 60 percent from September 14, 2015, and 90 percent from November 16, 2015. 38 C.F.R. § 4.25. Therefore, as of November 16, 2015, the schedular percentage criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). The Board does not have jurisdiction to grant a TDIU in the first instance for the period prior to November 16, 2015, because the Veteran does not meet the percentage requirements for a schedular TDIU rating before that date. The issue of a TDIU prior to November 16, 2015 is addressed in the remand portion of this decision. Turning to the evidence, first, the Board must determine when the Veteran was actually unemployed. Employment records submitted from the Social Security Administration (SSA) show the Veteran stopped working in 2015. This is further supported by the Veteran’s application for increased compensation based on unemployability which indicates he was employed with Boeing Company from January 1986 to June 2015. Upon VA examination of the Veteran’s esophageal conditions in May 2016, the examiner opined the Veteran’s service-connected GERD would not impact his ability to work. Upon VA examination of the Veteran’s hands in May 2016, the examiner stated while working the Veteran had frequent hand pain and difficulty holding items. An independent vocational examiner reviewed the Veteran’s employability in October 2017. Based upon a review of the Veteran’s medical and employment history the examiner concluded the Veteran would be precluded from performing work at a substantial gainful level due to his service connected GERD, PTSD, left shoulder tendonitis, lumbar strain, bilateral knee strains, tinnitus, bilateral degenerative arthritis of the hands, and allergic rhinitis. While not binding on the VA, the Board notes SSA granted disability due to the inability to maintain substantially gainful work due to his lumbar degenerative disc disease, bilateral knee impairments, bilateral shoulder surgeries, and PTSD, effective April 1, 2015. In this case, the evidence indicates that the Veteran has had difficulty maintaining a job based solely on his service-connected symptoms. The record reflects that the Veteran was not gainfully employed throughout the appellate period. Indeed, the Veteran’s symptoms of GERD, PTSD, and multiple orthopedic impairments render any type of employment difficult, if not impossible. Based on the evidence above and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected impairments rendered him unable to secure or follow a substantially gainful occupation. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted beginning November 16, 2015. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an extraschedular TDIU prior to November 16, 2015 is remanded. With regard to a TDIU prior to November 16, 2015, the Veteran did not meet the criteria for a schedular TDIU at that time. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Therefore, any award of TDIU prior to that date would be on extra-schedular basis. A claim for a TDIU may be referred to Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a), but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b). As discussed above, the Veteran indicated that he was been unemployed since at least June 2015 due to his service-connected disabilities, and remand is required for referral to Compensation and Pension Service. Accordingly, the case is REMANDED for the following action: 1. 1. The AOJ should refer this case to the Director of Compensation Service for consideration of an extra-schedular TDIU prior to November 16, 2015. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura C. Owens, Associate Counsel