Citation Nr: 20001774 Decision Date: 01/08/20 Archive Date: 01/08/20 DOCKET NO. 18-33 019 DATE: January 8, 2020 ORDER A 10 percent rating, but not higher, for hypertension/high blood pressure is granted. A rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for degenerative disc disease of the cervical spine (neck) is remanded. Entitlement to service connection for depression is remanded. Entitlement to compensation for total disability based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, the evidence shows a history of diastolic pressure predominantly 100 or more that requires medication to control but not diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 2. The evidence does not show material weight loss and hematemesis, melena with moderate anemia, or other GERD symptoms productive of serious impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating but no more for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. 2. The criteria for a rating in excess of 30 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1982 to August 1997. Service connection for fibromyalgia was granted in a June 2019 rating decision, and that issue is no longer on appeal. Increased Rating The Veteran contends she should receive higher ratings for her hypertension and GERD disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to a rating in excess of 10 percent for hypertension Hypertension is rated under the rating schedule for the cardiovascular system, 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. A compensable, 10 percent rating requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. For a 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. Id. Any higher rating requires higher diastolic pressure readings. Id. The Board has reviewed the record and finds the Veteran’s hypertension meets the criteria for a 10 percent rating but no higher. See 38 C.F.R. § 4.104, DC 7101. Resolving doubt in the Veteran’s favor, the evidence shows a history of diastolic pressure predominantly 100 or more that requires medication to control. Current treatment records and the May 2019 examiner confirm that she takes two medications to control her blood pressure. A review of treatment records prior to the effective date of her award of service connection shows diastolic pressure readings over 100 in 2004, 2005, and 2006. These readings represent approximately 50 percent of the readings shown in VA treatment records during those years. As such, the Veteran’s hypertension satisfies the criteria for a 10 percent rating. However, the evidence does not show diastolic or systolic pressure readings that could satisfy the criteria for a rating in excess of 10 percent. The May 2019 examiner recorded three blood pressure readings: 85/61, 100/74, and 102/72. Additionally, treatment records do not show diastolic pressure 110 or more or systolic pressure 200 or more, much less a predominance of such pressures. In awarding the 10 percent rating, the Board has considered the Veteran’s report of taking two medications and that her blood pressure is so severe that she would have to be hospitalized if she went without proper health care and medication. Nevertheless, ratings for hypertension are based on blood pressure readings, and the evidence does not show blood pressure readings sufficient to warrant a 20 percent or higher rating. 2. Entitlement to a rating in excess of 30 percent for GERD The Veteran’s GERD is rated, by analogy, under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346 for hiatal hernia. She currently receives a 30 percent rating under Diagnostic Code 7346 for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. The maximum, 60 percent disability rating requires pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. Following a review of the record, the Board concludes the criteria for a rating in excess of 30 percent for GERD have not been met. See 38 C.F.R. § 4.114, DC 7346. The evidence does not show material weight loss and hematemesis, melena with moderate anemia, or other GERD symptoms productive of serious impairment of health. The February 2016 examiner recorded GERD symptoms of pyrosis (heartburn), regurgitation, substernal pain, and sleep disturbance. The Veteran reported that she had to stick to a specific diet, avoid fried or greasy foods and tomato sauce, and would have to go to the bathroom after each meal. A February 2016 treatment record notes a second dose of medication was added in the morning to help control her GERD symptoms. The May 2019 examiner recorded symptoms of reflux and pyrosis but no regurgitation, vomiting, weight loss, hematemesis, melena with anemia, or symptoms productive of considerable or severe impairment of health. In her August 2016 notice of disagreement, the Veteran wrote that the 2016 evaluator found her GERD caused all the symptoms except bleeding, which began about two days after the appointment. A review of the Veteran’s treatment records is silent for any gastroesophageal or intestinal bleeding, hematemesis, or melena. Further, the Veteran had a subsequent examination in which the examiner found she did not have symptoms productive of considerable or severe impairment of health. The Board has considered the Veteran’s statements but find them outweighed by the medical evidence of no material weight loss, hematemesis, melena, or symptoms productive of serious health impairment. Although the Veteran’s GERD may occasionally disturb sleep and alter her diet choices, the 30 percent rating assigned compensates for considerable impairment of health, but the evidence does not show symptoms causing serious health impairment. As such, the Veteran’s GERD does not satisfy the criteria for a 60 percent rating under Diagnostic Code 7346. The Board has considered alternative diagnostic codes to rate the Veteran’s GERD symptoms. Particularly, the Board considered Diagnostic Code 7319 for irritable colon syndrome to address the Veteran’s report of needing to use the bathroom after every meal. However, 30 percent is the highest rating available under Diagnostic Code 7319, so the Veteran could not receive a higher rating than she is presently assigned. None of the other diagnostic codes for the digestive system address her specific disability presentation or otherwise allow the Veteran’s GERD to receive a rating in excess of 30 percent. See 38 C.F.R. § 4.114. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder condition is remanded. 2. Entitlement to service connection for right shoulder condition is remanded. 3. Entitlement to service connection for left knee condition is remanded. 4. Entitlement to service connection for right knee condition is remanded. 5. Entitlement to service connection for degenerative disc disease of the cervical spine (neck) is remanded. The Veteran contends she injured her knees, shoulders, and neck in a serious motor vehicle accident during service. Service treatment records confirm she was treated for injuries, including laceration to the head, after a motor vehicle accident in November 1995. Current VA treatment records note osteoarthritis in the knees, a history of right shoulder arthroscopic rotator cuff repair in 2014, left shoulder tendinopathy and mild degenerative changes, and mild multilevel discogenic disease most prominent at C5-6 and C6-7. The Veteran had MRI studies of the right knee, left shoulder, and neck in October and November 2014. Records from January and December 1998 show complaints of neck tenderness and the assessment of trapezius muscle strain shortly after discharge. A September 2000 MRI of the cervical spine revealed mild disc protrusions or bulges from C4-5 and C6-7. An October 2000 treatment record notes shoulder pain secondary to impingement and knee pain secondary to patellofemoral syndrome. The Veteran had an examination of the right knee in May 2019 in which the examiner found she did not have a current diagnosis. However, this conclusion is contradicted by the other evidence of record, specifically, the November 2014 MRI report. Otherwise, the record does not appear to include any other VA examination or medical opinion for the knees, shoulders, or neck. As there is evidence of current disabilities, an in-service event, and reports of continuous pain suggesting a nexus, medical opinions are needed to determine if the disabilities are at least as likely as not due to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, while the record includes subsequent treatment notes after the motor vehicle accident, it does not appear to include any records of hospitalization or treatment at a hospital directly following the accident. As hospital records are often stored separately from regular service treatment records, the Agency of Original Jurisdiction (AOJ) should request any hospital records from service. 6. Entitlement to service connection for depression is remanded. The Veteran contends her depression began during service and is otherwise related to pain and complications from her other disabilities. The evidence shows she currently has depression. Records show evaluation for mental health and treatment for depression in August 1999 and April 2000, a few years after discharge and then, continuous treatment for depression throughout the 2000s. The May 2019 examiner opined that her current depression was less likely than not incurred in service because her service records show only one incident of hospitalization for adjustment disorder after a miscarriage and no other treatment. The May 2019 opinion is inadequate as it does not appear that the examiner considered all the relevant evidence of record, including treatment for depression shortly after service and the Veteran’s statements of ongoing depression during and after service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, a medical opinion is needed to address the Veteran’s contention that her depression is related to pain and complications of her service-connected disabilities, like migraines and fibromyalgia. 7. Entitlement to compensation for TDIU is remanded. The issue of entitlement to TDIU may be affected by the outcome of the Veteran’s other appeals and is remanded as intertwined. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Request records of any hospitalization of the Veteran during service, including after the November 1995 motor vehicle accident. Requests for federal records should continue until the records are obtained or deemed unavailable. 3. Then, schedule the Veteran for examinations and medical opinions on her knee, shoulder, and neck claims. The examiner should review the record and provide opinions on the following: a. Is the Veteran’s current bilateral knee pain, arthritis, or any other diagnosis at least as likely as not related to the motor vehicle accident in service? b. Is the Veteran’s current bilateral shoulder pain, right shoulder post-arthroscopic rotator cuff repair, left shoulder tendinopathy and mild degenerative changes, or any other diagnosis at least as likely as not related to the motor vehicle accident in service? c. Is the Veteran’s current cervical spine mild multilevel discogenic disease at least as likely as not related to the motor vehicle accident in service? Consider all lay and medical evidence including treatment for the knees, shoulders, and neck in 1998 and 2000 and the lay reports of injury during the motor vehicle accident. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 4. After completing (1) and (2) above, obtain a medical opinion for the Veteran’s depression claim. An examination should only be obtained if deemed necessary by the medical expert. The medical expert should review the claims file and address the following: a. Did the Veteran’s current depression at least as likely as not have its onset during service? b. Was the Veteran’s depression at least as likely as not caused by pain and other complications from her service-connected disabilities, including migraines, fibromyalgia, and GERD? c. Was the Veteran’s depression at least as likely as not aggravated (worsened) by pain and other complications from her service-connected disabilities? If aggravation is found, provide a baseline level of disability prior to aggravation. The examiner should consider all lay and medical evidence, including the Veteran’s statements of continuous depression. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.