Citation Nr: 21005138 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-30 095 DATE: January 29, 2021 ORDER The rating reduction from 30 percent to 10 percent for gastroesophageal reflux disease with esophagitis and hiatal hernia was improper, and the 30 percent rating is restored, effective April 1, 2020. REMANDED Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease with esophagitis and hiatal hernia is remanded. Entitlement to service connection for cervical spine stenosis with degenerative disc disease and spondylosis, claimed as neck injury is remanded. Entitlement to service connection for lumbar spine stenosis, claimed as lower spine injury is remanded. FINDING OF FACT At the time of the January 2020 rating decision, the preponderance of the evidence did not show an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work due to his service-connected gastroesophageal reflux disease with esophagitis and hiatal hernia. CONCLUSION OF LAW The Veteran’s 30 percent rating for gastroesophageal reflux disease with esophagitis and hiatal hernia is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) from August 2016 and January 2020 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing in October 2020 before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. The rating reduction from 30 percent to 10 percent for gastroesophageal reflux disease with esophagitis and hiatal hernia was improper, and the 30 percent rating is restored The Veteran was rated as 30 percent disabled for gastroesophageal reflux disease with esophagitis and hiatal hernia effective September 30, 2015 by a March 2016 rating decision. In October 2019, the RO proposed to reduce this rating to 10 percent, which was implemented in a January 2020 rating decision, effective April 1, 2020. In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. The regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). Ratings that have been in effect for less than five years, such as here, require improvement before an evaluation is reduced. 38 C.F.R. § 3.344(c). To reiterate, the rating agency must determine whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. After review of the evidence, the Board finds that the reduction was not proper as the RO did not address whether there was an actual improvement in the ability to function under the ordinary conditions of life and work. Id. Rather, the decision merely noted that the October 2019 VA examination indicated that his current symptoms were dysphagia, pyrosis (heartburn and/or reflux), and substernal pain. However, the October 2019 proposed rating reduction and January 2020 reduction decision both failed to address whether the evidence shows an actual improvement in the Veteran’s ability to function. The preponderance of the evidence does not show this to be the case. The March 2016 VA examination noted symptoms of persistently recurrent epigastric distress and dysphagia which were productive of considerable health impairment. The October 2019 VA examination indicated symptoms of dysphagia, pyrosis, and regurgitation, accompanied by substernal pain, nausea and sleep disturbance more than four times yearly, and that his conditions would make it difficult for the Veteran to focus on work-related tasks. Though the findings on examination were not identical, the preponderance of the evidence does not indicate an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Indeed, the Veteran competently and credibly testified at the October 2020 Board hearing that his symptoms have worsened over time. Decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Since the rating decision that accomplished the reduction did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy is to restore the rating. See Hayes, 9 Vet. App. at 73. Accordingly, his 30 percent rating is restored, effective from the date of reduction. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for gastroesophageal reflux disease with esophagitis and hiatal hernia is remanded. The Veteran testified at the October 2020 Board hearing that his symptoms have increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of gastroesophageal reflux disease with esophagitis and hiatal hernia. 2. Entitlement to service connection for cervical spine stenosis with degenerative disc disease and spondylosis, claimed as neck injury is remanded. 3. Entitlement to service connection for lumbar spine stenosis, claimed as lower spine injury is remanded. The Veteran contends he has experienced symptoms of his low back and neck conditions, to include radiating pain to his upper and lower extremities, since a December 1988 bicycle accident in service. The Veteran is diagnosed with cervical spine degenerative disc disease and spondylosis, and lumbar spine degenerative disc disease and foraminal stenosis. See August 2015 Private treatment records. The occurrence of the in-service bicycle accident is established by the Veteran’s competent and credible testimony and service treatment records. Therefore, the question is one of nexus. The Veteran competently testified at the October 2020 Board hearing of low back pain continuously since the conceded accident in service, which continuously progressed to upper back, neck, and arm conditions. In December 2016 the Veteran submitted five lay statements attesting to the authors’ personal observations of the Veteran’s back pain and other symptoms since as early as 1993. Additionally, medical bills indicate treatment for lumbar spine, cervical spine, shoulder, and upper extremity conditions since 2002. However, the March 2016 VA examination, which opined against relation to service due to lack of treatment prior to 2010, did not consider the above evidence. Accordingly, an addendum opinion considering this evidence is warranted. Additionally, based on the Veteran’s October 2020 hearing testimony, it appears there may be outstanding private treatment records regarding these conditions. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and any representative. 2. Thereafter, obtain an addendum opinion from an appropriate clinician regarding the Veteran’s lumbar and cervical spine disabilities, to include upper and lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner is asked to answer the following questions: (a.) Is the Veteran’s cervical spine disability at least as likely as not (50 percent or greater probability) related to service, including the conceded in-service bicycle accident? (b.) Is the Veteran’s lumbar spine disability at least as likely as not (50 percent or greater probability) related to service, including the conceded in-service bicycle accident? In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner’s attention is drawn to the following evidence: (a.) December 2016 lay statements received from T.P., P.C., N.K., G.H., and R.L.P. reporting back and neck pain since 1993. (b.) The Veteran’s competent testimony that since the in-service bicycle accident he experienced continuous symptoms of low back and neck pain, as well as intermittent hand numbness and radiating pain into the upper and lower extremities. (c.) Medical bills received in January 2018, documenting treatment for the claimed conditions since 2002. The examiner must provide a complete explanation for all opinions. If the examiner is unable to render the requested opinions without resorting to speculation, the examiner must state whether there is inadequate factual information, whether the question falls beyond the knowledge of the examiner, whether the question falls beyond the scope of the medical community, or another reason. The need for additional physical examination of the Veteran is left to the discretion of the examiner. 3. After completing directive #1, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of gastroesophageal reflux disease with esophagitis and hiatal hernia. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.