Citation Nr: 21065892 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-48 205A DATE: October 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee strain with instability and shin splints is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain with limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for right knee strain with instability and shin splints is remanded. Entitlement to an initial rating in excess of 10 percent for right knee strain with limitation of flexion is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle sprain is remanded. Entitlement to an initial rating in excess of 10 percent for right ankle sprain is remanded. Entitlement to an initial rating in excess of 20 percent for low back strain with degenerative arthritis is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 6, 2020, is remanded. FINDING OF FACT The Veteran's GERD has been manifested by persistently recurrent epigastric distress, reflux, substernal pain, sleep disturbance and nausea but without dysphagia or considerable impact to Veteran's health. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for GERD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 to August 1996 and July 2010 to February 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). While this case was on remand, the RO awarded the Veteran service connection for posttraumatic stress disorder and special monthly compensation at the statutory housebound rate, both effective July 6, 2020. August 2020 Rating Decision. This moots the issue of entitlement to a TDIU on or after July 6, 2020. The Board has limited the TDIU issue to the period before July 6, 2020. 1. Entitlement to a disability rating in excess of 10 percent for GERD is denied. The Veteran's service-connected GERD is rated 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346, the rating criteria for hiatal hernia. Under Diagnostic Code 7346, a 60 percent rating is warranted if the disability is manifested by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned if symptoms consist of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of less severity, a 10 percent rating is assigned. 38 C.F.R. § 4.114. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. The Veteran underwent VA examinations in April 2016 and August 2020. At the April 2016 VA examination, the Veteran reported that he had symptoms of GERD during active duty and was having difficulty laying down and sleeping due to those symptoms. He took over the counter medication reported that he was prescribed medication by a physician. He reported symptoms of persistently recurrent epigastric distress, reflux, substernal pain, along with 4 or more episodes of sleep disturbance and nausea which lasted less than one day. At the August 2020 VA examination, the Veteran reported only pyrosis and reflux. VA and private treatment records showed that the Veteran's GERD symptoms were controlled with prescription medications. A July 2017 letter from Dr. T.R. described his symptoms as "significant," but stated that the symptoms have been under better control with PPI medication. The Board finds that during the period of appeal the Veteran had persistent epigastric distress, reflux, substernal pain, sleep disturbance, and nausea. However, the evidence of record does not show that the Veteran had considerable impairment of health as the VA examinations along with the VA and private treatment records. The structure of the 30 percent criteria under DC 7346 requires health impairment greater than the mere existence of symptoms listed. 38 C.F.R. § 4.114. The August 2020 VA examiner opined that the Veteran suffered no direct functional limitation due to his GERD, although sleep difficulty may affect his ability to his job. However, the Veteran is service connected for sleep apnea and rated at 50 percent for that disability. The April 2016 examiner noted that the Veteran believed that his reflux would impact his ability to work, but that he was not working at that time and was looking for work. The Veteran's private and VA treatment records indicated that the Veteran's symptoms were controlled with medication, and the medical and lay evidence of record is silent for hospitalization during the appeal period due to GERD. Neither the August 2020 nor April 2016 examiner opined that the Veteran's GERD symptoms caused considerable impairment of health. In light of the foregoing, the Board finds that the preponderance of the evidence demonstrates that the Veteran's GERD symptoms do not produce considerable impairment of health. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board concludes that the criteria for a rating in excess of 10 percent for GERD are not met. The appeal must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left knee strain with instability and shin splints is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left knee strain with limitation of flexion is remanded. 3. Entitlement to an initial rating in excess of 10 percent for right knee strain with instability and shin splints is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right knee strain with limitation of flexion is remanded. 5. Entitlement to an initial rating in excess of 10 percent for left ankle sprain is remanded. 6. Entitlement to an initial rating in excess of 10 percent for right ankle sprain is remanded. 7. Entitlement to an initial rating in excess of 20 percent for low back strain with degenerative arthritis is remanded. 8. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 9. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. 10. Entitlement to a TDIU prior to July 6, 2020, is remanded. The Veteran last underwent VA examinations for his back, ankle, and knee disabilities in August 2020. Unfortunately, the examination reports did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as the examiner did not perform tests for passive range of motion or clearly explain why those tests were not conducted. Therefore, new examinations are required to comply with the requirements of Correia. Additionally, the examiner used identical language in the knee and ankle examinations indicating that the Veteran "could not reliably determine and demonstrate [range of motion] loss during a flare up or after repetitive usage," that medical records did not identify previous flare ups or after repetitive usage where there was a loss of range of motion, and that general medical knowledge of the claimant's joint condition is insufficient to reasonably estimate ROM for each plane of motion as there is great variability between claimant's with similar conditions. However, the examination record shows that the Veteran did offer a lengthy description of his ankle and knee flare ups. Furthermore, the same examiner was able to estimate functional loss due to flare ups and repeated use over time with the Veteran's back disability based on the Veteran's descriptions but did not explain why he was unable to estimate functional loss for the knee and ankle disabilities as well. Therefore, the Board finds that the examiner's opinion did not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) since the examiner did not offer an opinion estimating the limitation of function during a flare up using lay statements from the Veteran or sufficiently explain why such an opinion cannot be offered, and a new examination should be obtained. Finally, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). The RO will have the opportunity to adjudicate the claims with the benefit of the new regulations on remand. As the Veteran's bilateral radiculopathy disabilities will be re-examined in conjunction with the Veteran's back examination, a remand of those claims is appropriate. Finally, as the claim for entitlement to a TDIU prior to July 6, 2020, is intertwined with the remaining disabilities on appeal, a remand of that claim is appropriate as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back, knee, and ankle disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner must indicate whether the estimates also reflect the level of functional impairment present at the April 2016 and August 2020 VA examinations for the same disabilities. If it is not possible to provide a specific measurement 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). J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.