Citation Nr: 20009604 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-01 580 DATE: February 6, 2020 ORDER Entitlement to service connection for a neck disability, to include degenerative disc disease (DDD), is granted. Entitlement to service connection for a stomach disability is denied. Entitlement to an effective date earlier than August 16, 2016, for the grant of service connection for unspecified depressive disorder with anxious distress is denied. Entitlement to an effective date earlier than February 17, 2015, for the grant of service connection for esophageal spasms is denied. Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder with anxious distress is denied. Entitlement to a 30 percent rating, but not higher, for hiatal hernia with gastroesophageal reflux disease (GERD) is granted. Entitlement to an initial rating in excess of 30 percent for esophageal spasms is denied. REMANDED Entitlement to service connection for degenerative arthritis, left leg/ankle, to include as secondary to service-connected residual fracture, left fibula, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating in excess of 30 percent for residual fracture, left fibula, is remanded. Entitlement to an effective date earlier than February 17, 2015, for the grant of a 30 percent rating for residual fracture, left fibula, is remanded. FINDINGS OF FACT 1. The Veteran has a neck disability, diagnosed as DDD, that is presumed to be etiologically related to his active service. 2. The Veteran does not have a current diagnosis for a stomach disability, other than the other gastrointestinal (GI) disabilities for which he is already service-connected, that is related to his active service. 3. The Veteran filed a formal service connection claim for depression secondary to a service-connected disability that was received by VA on August 16, 2016; however, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for depression or a psychiatric disability prior to August 16, 2016. 4. The Veteran filed an informal increased rating claim for hiatal hernia with GERD (claimed as “continuous worsening of stomach symptoms secondary to diagnosis received while on active duty”) that was received by VA on February 17, 2015; however, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for esophageal spasms or any esophageal disability prior to February 17, 2015. 5. For the entire period on appeal, the Veteran’s unspecified depressive disorder with anxious distress more nearly approximated occupational and social impairment with reduced reliability and productivity. 6. The Veteran’s hiatal hernia with GERD more nearly approximates persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 7. The Veteran’s esophageal spasms were moderate. CONCLUSIONS OF LAW 1. This criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a stomach disability have not been met. 38 U.S.C. §§ 1112, 1131 (2012); 38 C.F.R. § 3.303 (2019). 3. The criteria for an effective date earlier than August 16, 2016, for the grant of service connection for unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 4. The criteria for an effective date earlier than February 17, 2015, for the grant of service connection for esophageal spasms have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 5. The criteria for an initial rating in excess of 50 percent for unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2019). 6. The criteria for a 30 percent rating, but not higher, for hiatal hernia with GERD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7346 (2019). 7. The criteria for an initial rating in excess of 30 percent for esophageal spasms have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7203 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from October 1979 to July 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June and July 2015 rating decisions issued by the VA Regional Office (RO). Service Connection 1. Neck Disability The Veteran has contended that his neck disability, to include degenerative arthritis, is related to his active service. Specifically, he reported that he was involved in a motor vehicle accident (MVA) in September 1982 and sought medical treatment for head and neck pain during service. Service treatment records (STRs) confirmed that the Veteran was involved in an MVA in September 1982. He received emergency medical treatment for neck and head pain after he struck his head on the windshield during a head-on collision. Additionally, the Veteran complained of severe muscle spasms on the right side of his neck and chronic neck pain in February and March 1981, respectively. A February X-ray revealed reversal of the normal cervical lordosis and minimal spurring at C5-6. However, a March 1981 X-ray was within normal limits. Nonetheless, the Veteran has reported that he first experienced symptoms associated with a neck disability while he was in active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. At a June 1985 VA examination, the Veteran complained of neck pain; however, it was not further evaluated. A review of private medical records documented that the Veteran complained of neck pain since at least 1987. Prior to March 1995, MRIs findings revealed that the Veteran had mild C5-6 protrusion. In August 1997, the Veteran sought private medical treatment after he fell off a chair and struck his head and neck against a bookshelf. He underwent an anterior cervical disc fusion (ACDF) at C6-7 with right anterior foraminotomy in April 1998 and ACDF at C4-5 in April 2000. In June 2015, the Veteran was afforded a VA examination. A cervical spine X-ray revealed moderate DDD at C5-6. The examiner opined that the Veteran’s neck disability was less likely than not incurred in or caused by his injury during active service. However, the examiner added that she was unable to establish a nexus for the Veteran’s neck disability because of the Veteran’s self-reported neck re-injury in 1997 and subsequent cervical spine surgeries. The Board finds the June March 2015 VA medical opinion inadequate for adjudication purposes. Specifically, the examiner did not consider the private medical evidence documenting complaints of neck pain and mild disc protrusion prior to the Veteran’s neck re-injury in 1997. Furthermore, the examiner did not address the STR complaints of neck pain and muscle spasms in 1981. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes that for certain chronic diseases, such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although DDD is not technically arthritis, it is a chronic degenerative process that can be treated as arthritis for purposes of presumptive service connection for a chronic disease. In sum, while the Veteran is not competent to establish a diagnosis of arthritis, as that requires medical imaging and a medical opinion, his competent and credible statements of continuity of symptoms are sufficient to establish a link between his current diagnosis of DDD and his in-service neck injury. Although there is a VA medical opinion of record opining that the Veteran’s neck disability was not related to his active service, that opinion is not adequate. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for a neck disability is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Stomach Disability The Veteran has stated that he has a stomach disability that is related to his active service. He underwent two upper gastrointestinal (UGI) examinations during service. June 1980 UGI findings revealed acute gastroduodenitis. However, a November 1980 UGI was unremarkable. In March 1984, the Veteran was afforded a VA examination. He reported a recent diagnosis for an ulcer following continuous indigestion and pain in his upper left stomach and chest. A UGI examination showed evidence of some irritability of the duodenal bulb but no definite ulcer crater. The Veteran was provided additional VA examinations in June 1985 and December 1986. UGI findings revealed a normal stomach, duodenal bulb, and duodenal sweep. A review of the Veteran’s post-service private and VA treatment records reflected no current treatment for or diagnosis of a duodenal ulcer or nonservice-connected stomach disability. However, there was evidence of duodenal ulcer, peptic ulcer disease, and duodenitis in 1984. Following gastroscopy procedures conducted in May and November 1986, the Veteran’s stomach and duodenum appeared normal. In June 2015, a VA examiner found no currently present stomach or duodenum condition other than the Veteran’s service-connected hiatal hernia with GERD and esophageal spasms. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no evidence of record showing the Veteran to have a confirmed diagnosis of a stomach disability or duodenal ulcer during the pendency of the claim, or proximate thereto. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a stomach disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Effective Date 1. Unspecified Depressive Disorder with Anxious Distress The Veteran has asserted that he should be granted an effective date earlier than August 16, 2016, for the grant of service connection for unspecified depressive disorder with anxious distress. The Board has thoroughly reviewed the evidence of record prior to August 16, 2016, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a service connection claim prior to that date. The record shows that the Veteran filed a formal claim for entitlement to service connection for unspecified depressive disorder with anxious distress that was received by VA on August 16, 2016. The record does not contain evidence of the Veteran having filed any claim for unspecified depressive disorder with anxious distress or a psychiatric disability prior to August 16, 2016. Accordingly, the Board notes that the accurate effective date would be August 16, 2016, which is the later of the dates of claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board finds that the criteria for an earlier effective date for the grant of service connection for unspecified depressive disorder with anxious distress is not warranted. 2. Esophageal Spasms The Veteran has contended that he should be granted an effective date earlier than February 17, 2015, for the grant of service connection for esophageal spasms. The Board has thoroughly reviewed the evidence of record prior to February 17, 2015, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a service connection claim prior to that date. The record shows that the Veteran filed an initial formal claim for entitlement to service connection for hiatal hernia in October 1983. In an April 1984 rating decision, the RO granted entitlement to service connection for hiatal hernia with esophagitis. The Veteran did not appeal that decision. Following a review of the Veteran’s June 1985 and December 1986 VA examination reports and private medical records, the RO denied entitlement to an increased rating for hiatal hernia with esophagitis in June 1985 and March 1987 rating decisions. The Veteran did not appeal those decisions. Consequently, finality attached to these prior rating decisions and any earlier claims were no longer pending. On February 17, 2015, VA received the Veteran’s informal increased rating claim for his service-connected hiatal hernia with GERD (claimed as “continuous worsening of stomach symptoms secondary to diagnosis received while on active duty”). After May 2015 VA examination findings revealed that the Veteran experienced moderate esophageal stricture, the RO granted entitlement to a separate rating for esophageal spasms secondary to the Veteran’s service-connected hiatal hernia with GERD. To the extent that the medical evidence may have shown treatment for and a diagnosis of esophageal spasms prior to February 17, 2015, there is no documentation of an intent to file a service connection claim for esophageal spasms or any esophageal disability. See 38 C.F.R. § 3.1(p); Ellington v. Nicholson, 22 Vet. App. 141 (2007) (holding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim). Accordingly, the Board notes that the accurate effective date would be February 17, 2015, which is the later of the date of the Veteran’s informal increased rating claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis, 6 Vet. App. 426. As such, the Board finds that the criteria for an earlier effective date for the grant of service connection for esophageal spasms is not warranted. Increased Rating 1. Unspecified Depressive Disorder with Anxious Distress The Veteran has contended that symptoms of his unspecified depressive disorder with anxious distress are worse than that contemplated by the currently assigned rating. A review of VA treatment records between July and November 2016 revealed that the Veteran became depressed after he had to quit his job in the hemodialysis clinic as a result of his health issues. Nonetheless, he continued to work in the neurology neurosurgery unit at the hospital and was enrolled in nursing school. At the time, he had been married for 42 years and had two sons and a grandson. He reported symptoms of grumpiness, lack of energy, and loss of interest in activities. He attributed his lack of interest and depressed mood to chronic leg and knee pain. He denied any suicidal or homicidal ideations. In December 2016, the Veteran was afforded a VA psychiatric examination. At that time, he reported that he maintained a relationship with his children and extended family. He had limited social contact because of a recent move, but he was not socially isolated or troubled about his relationships. He provided care for one son who had a terminal illness as well as his grandson. He endorsed symptoms such as depressed mood, anxiety, irritability, near-continuous panic or depression, disturbances of motivation and mood, short temper, chronic sleep impairment, mild memory loss, problems concentrating, feeling tired, and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran had significant subjective distress but only slight work and social impairment. She determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A review of VA treatment records show that the Veteran has received additional mental health treatment. However, there is no indication from the record that his symptoms were manifestly different than those described above. Upon review of the record, the Board finds that the Veteran is not entitled to a higher rating at any point during the period on appeal. In this regard, there is no indication from the record that the Veteran has had occupational and social impairment with deficiencies in most areas. In this regard, there is no evidence that the Veteran’s mental health symptoms affected his ability to function independently, appropriately, and effectively or adapt to stressful circumstances. In fact, he did not have any difficulty maintaining a job or interacting with co-workers as a direct result of his depression. Instead, he continued to work, attend school, and care for his son and grandson. He maintained a close relationship with his wife and family. There is no evidence that he was disoriented or had any impairment of memory, thought processes, or communication. He did not exhibit any delusions, hallucinations, or grossly inappropriate behavior. He did not appear to neglect his personal appearance and hygiene. He denied any suicidal or homicidal thoughts or plans. Moreover, the December 2016 VA examination report did not reflect an assessment of occupational and social impairment with deficiencies in most areas. Therefore, the Board finds that a rating in excess of 50 percent for unspecified depressive disorder with anxious distress is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9435. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Hiatal Hernia with GERD The Veteran has asserted that symptoms associated with his service-connected hiatal hernia with GERD are worse than those contemplated by the currently assigned rating. In May 2015, the Veteran was afforded a VA examination. He reported symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux, nausea, and vomiting. He experienced moderate esophageal stricture causing difficulty with swallowing food and causing a choking feeling along with pain, reflux, and heartburn. The examination was unremarkable for any other pertinent physical findings, complication, conditions, signs and/or symptoms. The Board finds that after reviewing the medical evidence of record, a higher rating of 30 percent is warranted. In this regard, the Veteran’s hiatal hernia with GERD more nearly approximated persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While substernal or arm or shoulder pain was not specifically indicated at the May 2015 VA examination, the Board notes that the Veteran reported pain with difficulty swallowing. Accordingly, resolving all reasonable doubt in the Veteran’s favor, a rating of 30 percent, but no higher, is warranted under 38 C.F.R. § 4.114, Diagnostic Code 7346. Consideration has been given to assigning a rating in excess of 30 percent or a higher rating under another diagnostic code. However, the Veteran’s hiatal hernia with GERD was not productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. In fact, post-service private and VA treatment records did not show that the Veteran had received additional treatment for symptoms associated with a 30 percent rating or that his symptoms were manifestly different than the May 2015 VA examination findings discussed above. Furthermore, there is no indication from the record that the Veteran’s hiatal hernia with GERD causes any other functional impairment other than those contemplated by the currently assigned rating. Moreover, the record reflects that the Veteran is already service-connected for associated esophageal spasms. Therefore, the Veteran’s symptoms are accurately reflected by the rating assigned under 38 C.F.R. § 4.114, Diagnostic Code 7346, and a higher rating under the existing or another diagnostic code is not warranted. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart, 21 Vet. App. 505. 3. Esophageal Spasms The Veteran has maintained that symptoms associated with his service-connected esophageal spasms are worse than those contemplated by the currently assigned rating. As noted above, the May 2015 VA examiner found that the Veteran had moderate esophageal stricture causing difficulty with swallowing food and causing a choking feeling along with pain, reflux, and heartburn. Based on the foregoing, the Board finds that the Veteran is not entitled to a higher rating at any point during the period on appeal. In this regard, the evidence reflects that the Veteran’s esophageal spasms were moderate. Moreover, the Board finds that there is no indication from the record that the Veteran has severe stricture, permitting liquids only; or, permitting passage of liquids only with marked impairment of general health. Therefore, when the Veteran’s disability picture is considered as a whole, it is apparent that the Veteran’s symptoms more closely approximate those contemplated by a 30 percent rating and as such, a higher rating is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7203. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. 1. Bilateral Hearing Loss The Veteran was last afforded a VA audiology evaluation in May 2015. There is evidence of record that the severity of his disability may have increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from service-connected bilateral hearing loss. 2. Residual Fracture, Left Fibula; Left Leg/Ankle The Veteran was last afforded a VA examination for his service-connected residual fracture, left fibula, in June 2015. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his residual fracture, left fibula. The issues of entitlement to service connection for degenerative arthritis, left leg/ankle, and an effective date earlier than February 17, 2015, for the grant of a 30 percent rating for residual fracture, left fibula, are inextricably intertwined with the increased rating claim remanded herein, and they are therefore deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA audiology evaluation to determine the current level of severity of all impairment resulting from his service-connected bilateral hearing loss. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his residual fracture, left fibula. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed, to specifically include a separate VA examination for any currently present degenerative arthritis, left leg/ankle. The examiner should provide all information necessary for rating purposes, to include all information required by Correia and Sharp. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, Associate 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.