Citation Nr: 21000321 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-19 719 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an initial rating in excess of 70 percent for a psychiatric disability is denied. REMANDED Entitlement to an initial rating in excess of 10 percent based on limitation of flexion of the right knee prior to August 10, 2019, is remanded. Entitlement to a compensable rating based on limitation of flexion of the right knee from August 10, 2019, is remanded. A total disability rating based on individual unemployability (TDIU) prior August 10, 2020, is remanded. FINDINGS OF FACT 1. The GERD has not resulted in hematemesis or melena with moderate anemia or worse than “considerable” impairment of health. 2. The psychiatric disability does not result in total impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 30 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. 2. The criteria for an initial rating in excess of 70 percent for the psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2002 to October 2002, November 2005 to April 2006, and September 2007 to December 2011. A Travel Board hearing before the undersigned Veterans Law Judge was held in September 2018. The transcript has been associated with the record. This matter was previously before the Board in April 2019, when the issues were remanded for additional development. In a July 2020 rating decision, VA increased the rating for posttraumatic stress disorder to 70 percent effective December 2, 2011 and assigned a 10 percent rating from December 2, 2011, and a noncompensable rating from August 10, 2019, for the right knee based on limitation of flexion. VA also granted separate ratings for right knee instability and limitation of extension effective August 10, 2019, and right knee scar effective September 17, 2012. The Veteran has not indicated disagreement with the ratings or effective dates assigned for the separate ratings and they are not before the Board. Additional evidence, notably VA evaluation and treatment records, were associated into the record after the August 2020 supplemental statement of the case (SSOC). The Veteran has not specifically waived adjudication of the evidence associated with the record by VA. However, the evidence was adjudicated in a November 2020 rating decision that continued the ratings assigned for the GERD and the psychiatric disability, and the Veteran was provided notice of that decision. Thus, the Board finds no prejudice from adjudicating the claims at this time. In a November 2020 rating decision, VA granted a TDIU effective August 10, 2020. The issue of entitlement to a TDIU prior to August 10, 2020, remains on appeal. Increased Rating 1. GERD GERD is rated under Diagnostic Code 7346, which rates hiatal hernia. Diagnostic Code 7346 provides a 30 percent rating for 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 is provided for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. After consideration of the record, which includes treatment records, VA examination records, and statements from the Veteran, the Board finds a higher rating is not warranted for the GERD. Although the record suggests that there are symptoms associated with the GERD, the evidence does not suggest that the Veteran’s GERD has resulted in the disability picture contemplated by the higher rating. There is no lay or medical evidence of hematemesis or melena; notably, the Veteran testified that she was unsure whether she had hematemesis. Furthermore, the VA examiners determined the Veteran did not have hematemesis, melena, or anemia due to GERD. Moreover, the evidence does not suggest that the GERD has resulted in severe impairment of health. The record includes no medical findings of severely impaired health. Notably, the August 2019 VA examiner determined the Veteran did not have considerable or severe impairment of health, and the October 2020 VA examiner determined the Veteran had considerable but not severe impairment of health during a reported exacerbation. Treatment records reveal negative histories of severe GERD or peptic ulcer disease, including in August 2019, and treatment records reveal findings that the Veteran was in overall good health and was well-nourished and well-developed. The Board acknowledges that the Veteran reported weight loss due to the GERD, including associated with pregnancy at the Board hearing. VA examiners have determined the Veteran did not have material weight loss, and treatment records reveal no findings or histories of unexplained weight loss. The Board notes that March 2017 records do reveal weight loss associated with nausea and vomiting during the Veteran’s first trimester. The nausea and vomiting were attributed to hyperemesis gravidarum, however; thus, the weight loss is not a basis for a higher rating. In sum, the Board finds the GERD has not resulted in severe impairment of health, as required by a higher rating. The Board acknowledges that the GERD has resulted in occupational and functional impairment and has contended that the impairment is “severe.” The Board finds the Veteran’s assessment of the severity of the GERD is not supported by the record, however; rather, the Board finds the impairment associated with the GERD is contemplated by the Veteran’s current rating, which contemplates “considerable” impairment of health. Thus, the Board finds a higher rating is not warranted under Diagnostic Code 7346. 2. Psychiatric Disability The Veteran’s psychiatric disability is evaluated under Diagnostic Code 9411, which provides a 70 percent rating when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). VA treatment records and the March 2012 and March 2015 VA examination records report findings of full orientation and fair to normal speech, judgment, insight, thought, memory and hygiene/appearance. The treatment records include some histories of suicide attempt during service, self-harm behaviors of punching walls, and fleeting suicidal ideation. The August 2019 VA examination reveals additional findings of deficiencies in most areas from symptoms including panic attacks, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, mild memory loss, impaired judgment, difficulty in understanding complex commands, difficultly in adapting to stressful circumstances, and difficultly in establishing and maintaining relationships. The November 2020 VA examination record reveals findings of deficiencies in most areas from symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, and neglect of personal appearance an hygiene. The record reports that the Veteran was married and had positive relationships with a neighbor, her moth, a sister, and a childhood friend and that although she reported suicidal ideation, she was of low risk. She denied hallucination, delusion, homicidal ideation, or suicidal intent, and she was noted to be dressed and groomed appropriately. Thoughts were logical and coherent. A total schedular rating is not warranted under Diagnostic Code 9411. Notably, the record does not suggest impairment more severe than “deficiencies in most areas,” which is the impairment contemplated by the 70 percent rating. The record, including the Veteran’s own histories, indicate that she has a “strong” relationship with her husband and a bond with her child and that she maintains “positive” relationships with several other people. She has maintained contact with reality throughout the appeal period and generally demonstrates ability to control her behavior. She also generally demonstrates no impairment of speech, thought process, orientation, or ability to perform activities of daily living such as hygiene. Notably, although the November 2020 VA examiner determined that although the Veteran might neglect her personal appearance and hygiene, the Veteran was not intermittently unable to perform activities of daily living including basic hygiene. Although the record reveals histories of fleeting suicidal ideation and impulse control issues with punching walls, the record does not suggest that the Veteran has any plan or intent to attempt suicide (since the attempt during service in 2009), and the record is absent findings that the Veteran poses a significant risk to herself or others. She has been able to provide her own history during examination and other medical treatment and in conjunction with the appeal. In sum, the Board finds the record does not suggest total impairment, particularly total social impairment, or otherwise more nearly approximate the disability picture contemplated by the total rating. REASONS FOR REMAND In October 2020, VA examination records were associated with the record that include information pertinent to the claims for increased rating for right knee flexion. The record has not been adjudicated by the originating agency, and the Veteran has not waived the right to have the foregoing evidence initially considered by the originating agency. Accordingly, the issues must be remanded for consideration of the foregoing evidence by the originating agency. The issue of entitlement to a TDIU prior to August 10, 2020, is intertwined with this issue remanded herein. The matters are REMANDED for the following action: Readjudicate the Veteran’s claim for increased rating for right knee flexion with consideration of the October 2020 VA examination records. If a benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on each pending claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.