Citation Nr: 21071505 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-21 974 DATE: November 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflex disease (GERD) is denied. Entitlement to service connection for cervical spine degenerative disc disease and degenerative joint disease (cervical spine disability) is granted. Entitlement to right upper extremity cervical radiculopathy is granted. Entitlement to left upper extremity cervical radiculopathy is granted. Entitlement to service connection for right lower extremity radiculopathy (previously characterized as muscle pain) is granted. Entitlement to service connection for left lower extremity radiculopathy (previously characterized as muscle pain) is granted. REMANDED Entitlement to an initial compensable rating for onychomycosis is remanded. FINDINGS OF FACT 1. The Veteran's gastroesophageal reflux disease (GERD) has not been characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 2. The Veteran's cervical spine disability is related to an in-service injury or disease. 3. The Veteran's right upper extremity cervical radiculopathy is proximately due to his service-connected cervical spine disability. 4. The Veteran's left upper extremity cervical radiculopathy is proximately due to his service-connected cervical spine disability. 5. The Veteran's right lower extremity lumbar radiculopathy is proximately due to his service-connected lumbar spine disability. 6. The Veteran's left lower extremity lumbar radiculopathy is proximately due to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, 7399-7346. 2. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right upper extremity cervical radiculopathy have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for left upper extremity cervical radiculopathy have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for right lower extremity lumbar radiculopathy have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for left lower extremity lumbar radiculopathy have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Board notes that the issues of entitlement to service connection for allergic rhinitis and migraine headaches are also on appeal. These appeals will be addressed in a separate decision. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). GERD The Veteran contends that he is entitled to a higher rating for his service-connected GERD, to include due to symptoms and manifestations of pain at the level of the thoracic outlet. See October 2013 Notice of Disagreement. The Veteran's GERD is currently rated at 10 percent. 38 C.F.R. § 4.114, Diagnostic Code (DC) 7399-7346. The Veteran's GERD is rated pursuant to 38 C.F.R. § 4.114, DC 7346, for hiatal hernia. Pursuant to DC 7346, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent evaluation is warranted 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. The Board notes that "considerable" is defined as "large in extent or degree." By Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012), and "severe" is defined as "very painful or harmful." Id. at 1140. The Veteran attended a May 2013 VA examination for the purpose of establishing service connection for GERD. The examiner found the Veteran had recurring episodes of symptoms that were not severe 4 or more times a year, which lasted 1 to 9 days. The examiner noted monthly, pronounced, periodic abdominal pain, and transient nausea 4 or more times a month. The examiner found the Veteran's treatment plan did not include medication and that he had no incapacitating episodes. The Veteran attended a September 2019 VA examination. The examiner found a diagnosis of GERD and stated that the Veteran had symptoms of pyrosis and reflux, and noted the Veteran's report of daily heartburn. The examiner did not find that the Veteran's symptoms were productive of considerable or severe impairment of health. The examiner further stated that the Veteran's treatment plan does not include taking continuous medication for the condition. The Veteran attended an August 2021 VA examination. The examiner found a diagnosis of GERD and stated that the Veteran had symptoms of infrequent episodes of epigastric distress, reflux, regurgitation, and substernal pain. The examiner did not find that the Veteran's symptoms were productive of considerable or severe impairment of health. The examiner indicated that the Veteran's treatment plan includes taking Pantoprazole for his GERD. December 2018 VA medical center treatment records indicate mild and stable abdominal pain and indicated that the Veteran reported changing his diet helped his GERD symptoms. In May 2020, the Veteran was treated from chronic abdominal pain, which occurred independently of eating. A July 2020 record indicates the Veteran's GERD was controlled on omeprazole and a change in diet. A November 2020 VA medical center treatment note indicated that the Veteran had a history of abdominal pain, and the Veteran reported that his GERD was not controlled with famotidine, so the doctor prescribed pantoprazole. As demonstrated by the evidence above, the Veteran's GERD manifested in two or more symptoms for the 30 percent evaluation of less severity throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 7346. A higher 30 percent rating under DC 7346 is not warranted unless there is persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A veteran can have some or all of the symptoms listed in the criteria for a 30 percent rating, but if they are not productive of considerable impairment of health then they do not warrant a 30 percent rating. The VA examinations and the Veteran's medical records indicate several symptoms related to GERD, to include infrequent episodes of pyrosis, epigastric distress, reflux, regurgitation, and substernal pain. However, neither the examinations nor the treatment records indicate considerable impairment of health. As such, a higher 30 percent rating under DC 7346 is not warranted. In evaluating the Veteran's symptoms and assigning a rating, the Board has not considered the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). While the 2021 VA examiner noted the Veteran was taking medication for his condition, there is no indication the examiner considered the ameliorative effects of this medication in documenting the Veteran's signs and symptoms. While medical reports from VA indicate at times the Veteran's GERD has been well-controlled on medication, the Board has considered and rated based on the symptoms reported when the Veteran's GERD was not controlled by medication. Accordingly, the Board has not considered the ameliorative effects of medication is assigning this rating. Therefore, the preponderance of the evidence is against assigning a rating in excess of 10 percent for GERD. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a nonservice connected disability by a service-connected disability. 38 C.F.R. § 3.310(b). 1. Entitlement to cervical degenerative disk disease and degenerative joint disease. The Veteran contends that he is entitled to service connection for a cervical spine disability related to his service, to include treatment for neck pain in service. The Veteran has a current diagnosis of degenerative arthritis of the cervical spine and degenerative disc disease of the cervical spine, as identified in the March 2021 VA examination. Therefore, the first element of service connection has been met. Prior to his active duty service, a March 1990 service treatment record notes the Veteran's report of neck and shoulder pain, and left trapezius strain was noted. However, in a September 1994 Persian Gulf War questionnaire, the Veteran noted having neck symptoms while mobilized from August 1990 to August 1991. Accordingly, as the evidence of records shows an in-service injury or disease, the second element of service connection has been met. Therefore, this case turns on whether the Veteran's currently diagnosed degenerative arthritis and degenerative disc disease of the cervical spine are related to his in-service injury or disease. In May 2013, the Veteran underwent a VA examination for neck (cervical spine) conditions. He reported that his neck pain began during service after a back injury with a fall and that he continued to have neck pain and stiffness. He has been granted service connection for lumbar stenosis, based on a fall from a truck that occurred in 1991. Upon examination, cervical degenerative disk disease and degenerative joint disease with radiculopathy was diagnosed. The examiner provided a negative nexus opinion. The examiner noted that the service treatment records document that the Veteran was seen for acute neck and shoulder pain in March 1990, with an assessment of trapezius strain. In the examiner's view, this was a transient condition which should have resolved. However, the opinion has little probative value as it failed to address the Veteran's lay statements as to in-service onset of neck pain and continuing symptoms to the present. In July 2018, the Board remanded the claim for a new VA examination. The Veteran attended a VA examination in September 2019. The Medical History section of the report notes the date of onset as 2018 and acknowledges the Veteran's report of current symptoms, but no mention is made of the Veteran's competent report of recurrent neck symptoms since service. The examiner offered a negative nexus opinion based, in part, on "no evidence of continuity of symptoms" involving the neck or cervical spine from the time of the Veteran's active duty service through the diagnosis of a neck strain documented in September 2014. However, this opinion has little probative value because the examiner did not address the Veteran's competent lay statements as to an in-service onset of neck symptoms and his recurrent symptoms to the present. In addition, The VA examiner's statement that there is "no evidence" of continuity of symptoms was contrary to the record when made. The Board remanded the claim for a new VA examination in November 2020. The Veteran attended a March 2021 VA examination, although the examiner signed the examination reports and opinion in August 2021. As stated above, the examiner marked a diagnosis of degenerative arthritis of the cervical spine and degenerative disc disease of the cervical spine. The examiner noted the Veteran's condition onset in 1991 after falling off a military truck in which he injured his neck and back. The examiner stated that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted the Veteran's in-service neck injury and diagnosis of a strain during service. The examiner stated that the clinical examination showed neck pain and strain, degenerative disc disease, and degenerative joint disease. The examiner then stated that the neck disorder of the Veteran is at least as likely as not related to the in-service injury, event, or disease, to include the Veteran's report of neck injury during service and recurrent neck symptoms to the present. The Board finds that March 2021 examination and corresponding August 2021 opinion is the most probative evidence of record and supports that the conditions diagnosed by the examiner, degenerative arthritis of the cervical spine and degenerative disc disease of the cervical spine, are at least as likely as not related to service. Therefore, the preponderance of the evidence supports that the Veteran is entitled to service connection for cervical spine degenerative disc disease and degenerative joint disease. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right and left upper extremity cervical radiculopathy The Veteran has a current diagnosis of cervical radiculopathy of the bilateral upper extremities, as identified in the March 2021 VA examination. Therefore, the first element of service connection has been met. The March 2021 examination and opinion indicates that the Veteran's cervical radiculopathy is a symptom of, and related to his cervical degenerative disc disease, with foraminal encroachment. As noted above, service-connection has been granted for the Veteran's cervical degenerative disc disease. Therefore, this examination supports that the Veteran's bilateral cervical radiculopathy is proximately due to his service-connected cervical spine disability. The Board notes that the March 2021 examiner found that the Veteran's cervical radiculopathy was not proximately due to a service-connected disability, however, at the time of the examination the Veteran was not service connected for his degenerative disc disease of the cervical spine. Accordingly, the opinion has little probative value. Therefore, the preponderance of the evidence supports a grant of service connection for bilateral cervical radiculopathy on a secondary basis. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Right and left lower extremity lumbar radiculopathy The Veteran has a current diagnosis of lumbar radiculopathy of the bilateral lower extremities, as identified in the March 2021 VA examination. Therefore, the first element of service connection has been met. The Board notes that this appeal was characterized as entitlement to service connection for muscle pain, left and right lower extremities in the November 2020 Board remand. The remand noted that the Veteran has complained of pain in his legs/muscles, but he had also described this as numbness and shooting pain. The Board noted that under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a claim includes any disability that may reasonably be encompassed by the claim's description of the claim, reported symptoms, and other information in the record. As such, the Board remanded the appeal in November 2020 for a new VA examination to clarify whether the Veteran had any diagnosis of bilateral lower extremity disabilities, as the September 2019 examination found no diagnosis, but did not consider all of the Veteran's symptoms. The Veteran attended March 2021 examinations for muscle injury and for peripheral nerves. The only diagnosis of the lower extremities the examiner noted was lumbar radiculopathy. The examiner stated that the Veteran did not have a muscle condition, but rather his diagnosis was neuropathy, specifically lumbar radiculopathy. Therefore, the Board has characterized the claim as entitlement to service connection for bilateral lumbar radiculopathy pursuant to Clemons. 23 Vet. App. 1. The March 2021 examination indicates that the Veteran's lower extremity neuropathy is related to his lumbar degenerative disc disease, as the examiner specifies the neuropathy is lumbar radiculopathy. Service connection was previously granted for the Veteran's lumbar degenerative disc disease. Therefore, this examination supports that the Veteran's bilateral lumbar radiculopathy is proximately due to his service-connected lumbar spine disability. The Board notes that the August 2021 opinion states that the Veteran's right lower extremity disorder is less likely than not proximately due to a service-connected disability. However, the opinion states that the corresponding examination for this opinion requested was the muscle injury examination. As noted above, the examiner found the Veteran did not have a current muscle injury. As such, it appears this opinion is limited to a muscle condition, and is not probative as to whether the Veteran's lumbar radiculopathy is related to his service-connected lumbar spine disability. Therefore, the preponderance of the evidence supports a grant of service connection for bilateral lumbar radiculopathy on a secondary basis. There is no reasonable doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a compensable rating for onychomycosis is remanded. The Veteran's onychomycosis is currently rated as noncompensable. The Veteran contends he is entitled to an increased rating. In his October 2013 notice of disagreement, he asserted that he has onychomycosis "on all 10 fingers, both hands." The Veteran underwent a VA examination for skin diseases in May 2013. He reported problems with toenail fungus of the bilateral feet. He stated that he had taken Lamisil previously with partial improvement. Onychomycosis was diagnosed. The examiner noted: "left 5th toenail onychomycosis otherwise unremarkable feet." In September 2019, the Veteran underwent a VA examination for skin conditions. Onychomycosis of the toes of the bilateral feet was again diagnosed. The Veteran denied any current toe fungus yet also stated that all his toes are affected by the infection. While discoloration was noted, the examiner determined that questions as to the combined percentage of the skin condition affecting the total body and the exposed area were not applicable ("N/A") with respect to the Veteran's onychomycosis. The September 2019 VA examiner defined onychomycosis as a fungal infection of the nail plate, nail bed, or both. The Board remanded this appeal in November 2020 for a new VA examination to consider the statement of the Veteran, in his October 2013 notice of disagreement, that he has onychomycosis not only of the bilateral feet but also of the bilateral hands. The Veteran attended a March 2021 VA examination. The examiner stated that the Veteran had discolored thickened nails of the first and fifth metatarsal and the fingernails of both hands were not affected. The examiner stated she was unable to speculate measurements of the nails because there was no documentation found in the record. However, as noted in the November 2020 remand, the record contains the Veteran's lay statements in the October 2013 notice of disagreement regarding the extent of the disability on his fingers. The Veteran is competent to report the symptoms he is able to observe on his fingers. As the examiner did not consider this statement, an additional examination and opinion is required. 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 onychomycosis, to include the Veteran's competent report, in the October 2013 notice of disagreement, of symptoms not only on his toes but also on the fingers of both hands. The examiner should fully describe the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should provide an estimate of the surface area of the body affected considering the Veteran's lay statements from his October 2013 notice of disagreement, during the entire period on appeal (i.e., since April 12, 2012. 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 medical knowledge generally or a deficiency in the record (additional facts would be required). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.