Citation Nr: 21003431 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-14 165 DATE: January 21, 2021 ORDER Entitlement to an initial rating of 30 percent for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to a disability rating excess of 10 percent for post lumbar strain, prior to May 1, 2015, and in excess of 40 percent from May 1, 2015, for degenerative disc disease (DDD), lumbar strain, and Scheuermann’s disease, previously characterized as post lumbar strain (hereinafter, “a back disability”), is remanded. FINDING OF FACT The Veteran’s GERD is manifested by persistent recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation, and substernal pain. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code (DC) 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to August 2010. In an August 2011 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for post lumbar strain and GERD, and assigned an initial 10 percent rating, effective August 25, 2010. The Veteran perfected an appeal to the Board with respect to the rating assigned to his back disability and GERD. In November 2013, the Veteran testified before a Decision Review Officer (DRO), and in July 2014, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). Transcripts from both hearings are associated with the claims file. The Board hearing was before a now-retired VLJ. In a February 2020 correspondence, the Veteran was given the opportunity to request another hearing. The Veteran did not respond to this letter within thirty days and the Board assumes the Veteran does not want another hearing. During the pendency of the appeal, the RO re-characterized the Veteran’s post lumbar strain as degenerative disc disease, lumbar strain and Scheuermann’s disease and increased his disability rating to 40 percent, effective May 1, 2015. The RO denied an increase in initial disability rating in excess of 10 percent for GERD. See August 2015 Supplemental Statement of the Case. The Veteran was notified of the increased rating but did not withdraw his appeal. Thus, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where 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). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, 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. Entitlement to an initial rating in excess of 10 percent for GERD The Veteran contends that his GERD and associated symptoms warrant a higher disability rating than 10 percent. More specifically, at a November 2018 VA examination the Veteran asserted that his GERD has worsened over the past 18 months. The Veteran’s GERD is presently evaluated under DC 7346 for hernia hiatal. 38 C.F.R. § 4.114. Under DC 7346, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which includes 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, DC 7346. The words slight, moderate and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board observes in passing that “moderate” is generally defined as tending toward the mean or average amount or dimension. See Merriam-Webster's Collegiate Dictionary, 789 (11th 2003). “Severe” is generally defined as of a great degree: serious. Id., at 1140. For purposes of evaluating conditions in § 4.114, the term substantial weight loss means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term minor weight loss means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term inability to gain weight means that there has been substantial weight loss with inability to regain it despite appropriate therapy." Baseline weight means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. During the November 2013 DRO hearing, the Veteran testified that he could not sleep at night and had to be elevated in bed. He stated that he had to have an emergency surgery to stretch his stomach out and a knot was tied around his esophageus but that it was tied too tight and now instead of suppressing any of the reflux it comes up and causes severe discomfort. He testified that a check valve was created when they wrapped the stomach, which was intended to keep the reflux down but now the reflux gets stuck and burns. He stated that he has no relief and described it as short stabbing pains. At a December 2013 VA examination, the VA examiner noted persistently recurrent epigastric distress, pyrosis (heartburn), and reflux. The examiner also noted the Veteran experienced sleep disturbance due to reflux four or more times a year and that the Veteran’s symptoms last for less than one day. Anemia, weight loss, nausea, vomiting, hematemesis and melena were not noted. At the July 2014 Board hearing, the Veteran testified that his pain is constant, and the flare-ups cause the most unbearable pain. He stated the severe pains occur during any meal and any time he is not completely elevated in bed. He further testified that although he was presently working his GERD affects his ability to do his job because anytime he lays on his back he has issues and half of his job as a mechanic is laying under vehicles. A January 2015 VA treatment record documented that the Veteran has a history of a hiatal hernia but believes “it has gotten a little better and avoids overeating.” It was noted that he cannot belch and feels that he has a sluggish bowel but feels better if he passes gas. It was noted that he had a complaint of abdominal pain without nausea or vomiting but experiences some relief with medication. In February 2015, the Board remanded the Veteran’s claim based on his testimony of daily regurgitation and substernal arm or shoulder pain which was not noted in the December 2013 examination. In a May 2015 VA examination, the Veteran reported increasing episodes of acid reflux especially at night, beginning in 2009. He stated the condition worsened with even benign foods acting as significant triggers to the acid reflux and described the symptoms as getting choked up with acid. The VA examiner noted persistently recurrent epigastric distress with symptoms lasting 10 days or more. Dysphagia, pyrosis, reflux, regurgitation, and substernal arm or shoulder pain were noted to occur 4 or more times per year and last for 10 days or more. The examiner also noted sleep disturbance cause by esophageal reflux and recurrent nausea. Vomiting, hematemesis, melena, weight loss, and anemia were not noted. The Veteran described having frequent episodes of having pills stuck in his esophagus and esophagal spasms with pain radiating to his arms and shoulders. The examiner indicated the Veteran’s GERD impacts his ability to work because he is unable to lie flat and the Veteran estimated that “he has missed 1 week due to his acid reflux in the past year.” In January 2018, the Board noted that the record appeared to be missing VA treatment records and remanded the Veteran’s claim in order to obtain the missing records. In addition, as the case was being remanded for additional development, and based on the Veteran’s representative’s argument that an extraschedular rating was warranted, the Board requested that the Veteran be afforded an additional examination. During his November 2018 examination, the Veteran reported intermittent reflux that occurs daily but is worse depending on his diet and stress. He stated that it’s like he has a knot in his throat and chest. He reported intermittent transient nausea and vomiting with GERD episodes. The examiner noted that the Veteran’s GERD did not require continuous medication for treatment and was manifested by persistently recurrent epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation and substernal pain. The examiner also noted the Veteran experienced sleep disturbance due to reflux four or more times a year, and transient nausea and vomiting four or more times a year. Material weight loss, hematemesis, and melena were not noted. The examiner also indicated that the Veteran’s disability did not impact his ability to work. It was noted that the Veteran was able to do sedentary work. After considering the totality of the record, the Board finds the Veteran’s GERD has been manifesting in symptoms that most closely approximate those contemplated by a 30 percent rating. As noted above, the Veteran experiences persistently recurrent episodes of epigastric distress, dysphagia, pyrosis, reflux and regurgitation. The examination reports also show substernal pain. These symptoms are all explicitly contemplated by the 30 percent rating criteria. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s GERD is productive of considerable impairment of health, warranting an increased rating to 30 percent. The Board has considered whether a disability rating in excess of 30 percent is warranted. As noted, even though the Veteran’s gastrointestinal disability resulted in symptoms of pain and vomiting, there is no evidence of GERD causing material weight loss and hematemesis or melena with moderate anemia. The VA examinations also note that the Veteran’s GERD impacts his sleep. However, the Veteran has been diagnosed with obstructive sleep apnea and PTSD that results in difficulty sleeping. See, e.g., A July 2019 VA treatment record. Both disabilities have been service-connected and compensate the Veteran for his sleep impairment without separating out the symptoms attributable to each disability. The record does not indicate that the sleep impairment the Veteran experiences due to his GERD, by itself or in combination with his other GERD symptoms, results in a “severe” impairment of health, warranting an increased rating to 60 percent under Diagnostic Code 7346. Neither the Veteran nor his representative have argued otherwise. Here, the Veteran’s disability is consistent with the “considerable impairment of health” noted in the 30 percent rating the Board is assigning. Based on the foregoing, an increased rating to 30 percent, but no higher, for service-connected GERD is granted. Additional considerations In the April 2017 Appellate Brief, the Veteran’s representative raised the issue of an extraschedular rating for his GERD and back disability due to the impact of his disabilities on his daily activities with work and family. As noted above, the Board subsequently remanded the Veteran’s claim in order to afford the Veteran with a new examination. As part of the remand instructions, the Board requested that the RO consider extraschedular ratings. In the November 2020 Appellate Brief, the Veteran’s representative argued that extraschedular ratings were not considered, as requested. However, the SSOC stated that “a higher evaluation based on extra-schedular consideration” is not warranted and complied with the Board’s remand instructions. The Board’s prior remand did not refer the matter of an extraschedular rating to the Director of the Compensation Service. C.f., Smiddy v. Wilkie, No. 16-2333 (Vet. App. May 28, 2020). Nevertheless, as entitlement to an extraschedular rating was raised by the Veteran’s representative, the Board will address it. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether his disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. at 115. If it is not, the second step is to determine whether the Veteran’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id. at 116; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service, (Director) for a determination concerning whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. Id. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Id. In this case, neither the Veteran nor his representative have pointed to any symptom that is not capable of being adequately evaluated under the ratings schedule and the Board cannot identify any such symptom. See Long v. Wilkie, No. 16-1537, (Vet. App. Dec. 30, 2020). Under DC 7346, the schedular criteria for a 30 percent rating includes symptoms that are “productive of considerable impairment to health.” The ratings criteria for a 60 percent rating discuss unidentified symptom combinations productive of severe impairment of health. Veteran’s current symptoms of persistently recurrent epigastric distress, dysphagia, pyrosis, reflux, regurgitation and substernal pain are included as part of this criteria. For the foregoing reasons, the Board concludes that the preponderance of the evidence of record is against a finding that the Veteran’s GERD symptoms warrant remand for referral to the Director for consideration of an extraschedular rating. REASONS FOR REMAND Entitlement to a disability rating excess of 10 percent for post lumbar strain, prior to May 1, 2015, and in excess of 40 percent from May 1, 2015, for a back disability, is remanded. The Veteran contends he is entitled to an increased disability rating in excess of 10 percent prior to May 1, 2015, and in excess of 40 percent from May 1, 2015, for a back disability. In furtherance of this claim, the Veteran has been examined by the VA in December 2013, May 2015, November 2018, and August 2020. Upon review, the Board finds that the December 2013 and May 2015 VA examination reports are inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims, in Correia has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. On review, the December 2013 and May 2015 VA examination reports only included active range of motion findings and did not include range of motion findings for passive range of motion. The examination reports also did not specify whether the results were weight-bearing or non-weight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a retrospective opinion is required. Additionally, in Sharp v. Shulkin, the Court held that, pursuant to VA regulations, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, 29 Vet. App. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34. Here, the December 2013 VA examination report of record reflects a positive indication of flare-ups. However, no estimate was provided regarding the specific loss of range of motion, if any, during such episodes. Therefore, the Board finds that in light of Correia and Sharp, a retrospective opinion regarding the Veteran’s back disability prior to May 1, 2015, is required. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate medical professional regarding the nature and severity of the Veteran’s lumbar spine prior to May 1, 2015. That is, after reviewing the record prior to May 1, 2015, the examiner should provide an estimate, if at all possible, as to his ROM of the lumbar spine prior to May 1, 2015. In doing so, the examiner should discuss the historical severity of the Veteran’s ROM with both active and passive motions as well as in weight-bearing and non-weight-bearing, to include during any flare-up episodes or with repeated use over time. If factors, such as pain, weakness, fatigability or incoordination limited ROM or functional ability, discuss its impact in terms of the severity, frequency and duration thereof. If possible, the examiner should provide an estimate of his ROM in degrees. Further, if the Veteran’s lumbar spine disability underwent an increase in severity at any time prior May 1, 2015, the examiner should identify when the increase occurred. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. Extraschedular ratings should be considered, as requested. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.