Citation Nr: 20021354 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-31 139 DATE: March 25, 2020 ORDER Entitlement to a rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) associated with right knee tri-compartmental degenerative changes and patellar spur is granted. REMANDED Entitlement to service connection for an endocrine condition (including diabetes mellitus), to include consideration of obesity as an intermediary step, is remanded. Entitlement to a rating in excess of 10 percent for lumbar spine arthritis with degenerative disc disease (claimed as back pain) is remanded. FINDING OF FACT The Veteran’s GERD is manifested by dysphagia, pyrosis, reflux, sleep disturbances, and substernal pain that is productive of considerable impairment of health. CONCLUSION OF LAW The criteria for entitlement to a rating in of 30 percent, but no higher, for GERD have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114 Diagnostic Code 7399-7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to October 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2017, July 2018, and August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2017 rating decision, the RO granted service connection for lumbar spine arthritis with degenerative disc disease and assigned a 10 percent rating, effective June 17, 2016. The Veteran expressed his disagreement with the rating assigned in a December 2018 Notice of Disagreement (NOD). In the July 2018 rating decision, the RO granted service connection for GERD and assigned a 10 percent rating, effective June 17, 2016. The Veteran expressed his disagreement with the rating assigned for GERD in a September 2018 NOD. In the August 2018 rating decision, the RO denied service connection for an endocrine condition, to include diabetes mellitus. An NOD was received in September 2018, and a Statement of the Case (SOC) was issued in August 2019. The Veteran perfected his substantive appeal, via a VA Form 9, in October 2019. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating of 30 percent, but no higher, for gastroesophageal reflux disease (GERD) associated with right knee tri-compartmental degenerative changes and patellar spur is granted. The Veteran seeks a higher disability rating for his service-connected GERD, which is currently rated as 10 percent disabling under Diagnostic Codes 7399-7346. Diagnostic Code 7399 reflects that there is no diagnostic code specifically applicable to the Veteran’s service-connected GERD, and that this disability has been rated by analogy to hiatal hernia in Diagnostic Code 7346. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 7346, a 10 percent rating is warranted for hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity; a 30 percent rating is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health; and a 60 percent rating is warranted for 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran was afforded an Esophageal Conditions DGQ in August 2017, at which time the examiner noted a diagnosis of GERD. At the time of the examination, the Veteran noted that he had bad heart burn and that it caused sleep difficulties. The Veteran’s treatment plan included the use of continuous medication. The Veteran’s signs or symptoms included that of pyrosis, reflux, regurgitation, and substernal pain. The examiner also reported that the Veteran’s GERD caused sleep disturbance with four or more recurrences of symptoms per year which lasted less than a day. The Veteran submitted an Independent VA Rating Evaluation Regarding GERD, dated in September 2018. In the report, the examiner noted that the Veteran’s GERD disability should be increased to 30 percent. The examiner also cited the Veteran’s lay statements which described symptoms of chest-burning, frequent heartburn, acid reflux, and a feeling of food coming back up in throat and mouth every other day. The Veteran also reported that he uses medication to treat his GERD and that he has modified his diet and sleep habits. The Veteran also stated that his GERD symptoms were causing negative impacts on his personal life and well-being. The examiner stated that the Veteran’s statements confirmed that he suffered from frequent epigastric distress, substernal pain, pyrosis, reflux, and regurgitation which caused dietary limitations, and sleep disturbances with subsequent daytime fatigue, difficulty concentrating, and mood changes. The examiner also stated that the Veteran’s symptoms would drastically increase in severity without the use of his prescription proton pump inhibitor. When evaluating the Veteran’s symptoms noted in both the August 2017 and September 2018 evaluations, the Board finds that a 30 percent rating is warranted. In this regard, the Board notes that both evaluations revealed that the Veteran had symptoms including pyrosis, reflux, and regurgitation. The August 2017 examination also noted that the Veteran had substernal pain. As to a finding of the Veteran’s condition being productive of a considerable impairment of health, the Veteran has stated that he has sleep disturbances recurring over four times per year, to specifically include notations that he cannot get more than five hours of sleep due to being unable to fall asleep and excessive sleepiness throughout the day. The Veteran also reported that his symptoms cause negative impacts on his personal life, including his ability to deal with people in the community, family, and friends. The Veteran also cited to occupational impairment by citing that his work has suffered. The independent examiner further cited that the Veteran has chest pain, daytime fatigue, difficulty concentrating, and mood changes as a result of his GERD. Notably, the independent examiner also determined that the Veteran’s symptoms would drastically increase in severity without the use of his prescription proton pump inhibitor and that his rating application should take this into consideration. A May 2019 VA treatment records show that the Veteran’s condition was not controlled solely with medication. Resolving reasonable doubt in the Veteran’s favor, a 30 percent rating for service-connected GERD, but no higher, is granted. As to a higher rating, there is no evidence of record showing that the Veteran has a 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. REASONS FOR REMAND 1. Entitlement to service connection for an endocrine condition (including diabetes mellitus), to include consideration of obesity as an intermediary step, is remanded. The Veteran contends that service connection is warranted for an endocrine condition, to include diabetes mellitus. Specifically, the Veteran contends that his service-connected knees and back conditions caused obesity and that, in turn, he developed diabetes mellitus, type 2. At the outset, the Board notes that the Veteran’s service treatment records are silent as to complaints of, treatment for, or a diagnosis of an endocrine condition, to include that of diabetes mellitus. In a July 1991 Report of Medical Examination, the Veteran’s endocrine system was normal and urinalysis results were negative for albumin or sugar. In a July 1991 Report of Medical History, the Veteran denied having sugar or albumin in his urine. A VA treatment record shows that the Veteran was diagnosed with diabetes, mellitus in November 2015. The Veteran was afforded a VA examination in August 2018, at which time the examiner noted a diagnosis of diabetes mellitus, type 2. The examiner noted that the Veteran’s condition onset in the late 1990s and acknowledged that the Veteran stated that the condition began while out of the military. The examiner also reported that the Veteran’s brother has diabetes mellitus and that the Veteran had a history of mild obesity. The examiner opined that it was less likely than not that the Veteran’s diabetes mellitus was proximately due to or the result of a service-connected condition. The examiner acknowledged that the Veteran had a history of low back pain with degenerative arthritis, as well as right knee pain from a ruptured patellar tendon. The examiner also stated that the Veteran had a strong history of diabetes with a first-degree relative, his brother. The examiner further rationed that obesity and weight gain is significant in the development of diabetes, but that it is not the only causative factor. The examiner reported that the Veteran had evidence of a knee injury limiting his range of motion and that the Veteran was only mildly overweight as a result of his orthopedic issues. The examiner also reiterated that the more likely etiology of the Veteran’s diabetes mellitus was that of a strong family history of diabetes. The Veteran submitted a May 2018 private medical opinion authored by Dr. G.U. The physician opined that it was at least as likely as not that the Veteran’s diabetes mellitus, type 2 was secondary to, related to, and/or aggravated by his service-connected right knee tri-compartmental degenerative changes and patella spur, post-operative right knee injury, and lumbar spine arthritis with degenerative disc disease with associated weight gain. In support of the opinion, the examiner acknowledged that the Veteran stated that he had difficulty in controlling his weight once he developed his service-connected conditions. The Veteran stated that he gained nearly 100 pounds from the time of separation (31 pounds during active duty and 64 pounds from his discharge from active duty to present) and that he has trouble exercising because of his service-connected back and knees due to pain. The Veteran also reported that after his weight gain, he began to have increased hunger and had a daily impact on his life. The examiner stated that due to the Veteran’s service-connected right knee tri-compartmental degenerative changes and patella spur, post-operative right knee injury, and lumbar spine arthritis with degenerative disc disease, his activity diminished (due to pain and limitation of motion, which resulted in weight gain and, at the very least, contributed as an aggravating factor in the development of his diabetes mellitus, type 2. The examiner cited medical literature which proposed that weight gain has been established as secondary sequelae of a more sedentary lifestyle related to “joint pain, knee stiffness, and muscle weakness. The examiner also cited to additional medical literature which showed that obesity is the leading factor of diabetes mellitus, type 2 and noted that the American Diabetes Association further supports the nexus between obesity and diabetes type 2. In further support of her opinion, the examiner cited to federal law and regulations which have confirmed that obesity may be an intermediate step between a service-connected disability and a current disability that may be service connected on a secondary basis. Here, the Board acknowledges the private medical opinion in which the examining physician opined that it is at least as likely as not that the Veteran’s service-connected disabilities caused his obesity, which in turn caused his diabetes mellitus. However, the Board also notes that the examining clinician’s opinion did not comply with the stringent test necessary to establish that the Veteran’s obesity is an intermediate step between his service-connected disability(ies) and his current diagnosis of diabetes melitis that may be connected on a secondary basis. As such, on remand, an addendum opinion must be obtained. 2. Entitlement to a rating in excess of 10 percent for lumbar spine arthritis with degenerative disc disease (claimed as back pain) is remanded. The Veteran seeks a higher disability rating for his service-connected low back disability which is currently rated as 10 percent disabling under Diagnostic Code 5242. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. A February 2017 VA examination of the thoracolumbar spine noted the Veteran’s report of flare-ups, however, the detailed findings contemplated by Sharp have not been included. As such, on remand, a new examination should be conducted. The matters are REMANDED for the following action: 1. Obtain a medical opinion, from a qualified examiner, who has never treated the Veteran, concerning the potential effects of obesity on the Veteran’s diabetes mellitus. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. If the examiner indicates that the requested opinions cannot be obtained without a new in-person examination, a new examination should be arranged. After the records review and, if necessary, the examination is complete, the examiner should opine as to the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran’s service-connected right knee tri-compartmental degenerative changes and patella spur, post-operative right knee injury, and/or lumbar spine arthritis with degenerative disc disease caused the Veteran to become obese (for example, by preventing regular exercise)? (b) If so, is it at least as likely as not (50 percent probability or more) that the Veteran’s obesity was a substantial factor in causing or aggravating the Veteran’s diabetes mellitus, type 2? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran’s diabetes mellitus, type 2 would not have occurred or would not have been aggravated beyond its natural progression without the obesity caused by the service-connected right knee tri-compartmental degenerative changes and patella spur, post-operative right knee injury, and/or lumbar spine arthritis with degenerative disc disease? 2. Schedule the Veteran for a thoracolumbar spine examination by an appropriate clinician to ascertain the current severity of the Veteran’s service-connected spine conditions and any other diagnosed spine disability since February 2017. All indicated testing should be accomplished and all symptomatology associated with each disability should be identified. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. The examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. 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). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.