Citation Nr: 21072706 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 13-36 480 DATE: December 6, 2021 REMANDED Entitlement to a rating in excess of 20 percent for disability of the cervical spine (previously characterized as cervical strain, now characterized as spinal stenosis of the cervical spine) prior to January 23, 2018, and in excess of 30 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for gastritis with hiatal hernia is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 23, 2018 is remanded. Entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 prior to January 23, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 1978 to March 1979. She also had service in the Army National Guard and the U.S. Army Reserve, to include a period of active duty for training from April 1988 to September 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2011 and October 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In December 2017, the Veteran testified at a Board video-conference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the record. In May 2019, the Board, in pertinent part, remanded the Veteran's claims for higher ratings for gastritis and disability of the cervical spine to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the previously assigned ratings and returned the case to the Board. See May 2021 supplemental statement of the case (SSOC). In May 2021, while the case was in remand status, the AOJ, in pertinent part, granted service connection for a ventral hernia and for a hiatal hernia, each effective from July 6, 2010. The Veteran appealed that decision under the new Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in June 2021. Those issues will be the subject of a separate Board decision. As noted in the May 2021 rating decision, the Veteran's gastritis and hiatal hernia cannot be separately rated as 38 C.F.R. § 4.114 expressly prohibits ratings under Diagnostic Codes 7301 to 7329, inclusive, and 7331, 7342, and 7345 to 7348, inclusive, to be combined with each other. Rather, a single rating is to be assigned under the diagnostic code reflecting the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. In light of those provisions, the issue previously characterized as entitlement to an increased rating for gastritis has been recharacterized to include consideration of the hiatal hernia as well. See May 2021 rating decision; May 2021 Codesheet. In August 2021, the Board wrote the Veteran and her representative to inform them that the Veterans Law Judge who conducted the hearing in December 2017 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing. In September 2021 correspondence, she indicated that she did not wish to do so. 1. Entitlement to rating in excess of 20 percent for disability of the cervical spine prior to January 23, 2018, and in excess of 30 percent thereafter, is remanded. Additional development is required to ensure that all potentially existing and outstanding treatment records have been procured. VA treatment notes reflect that the Veteran was authorized community care for physical medicine and rehabilitation (PM&R), pain management, orthopedics, and physical therapy. Various VA treatment notes indicate that outside treatment records were scanned into VistA Imaging and were available for viewing there; however, it is not clear that the Veteran's claims file contains all of the corresponding records. Additionally, an April 2020 treatment record indicates that she received treatment at Bronx Ortho. On remand, the AOJ should undertake appropriate development to obtain any outstanding relevant treatment records. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 2. Entitlement to a rating in excess of 10 percent for gastritis with hiatal hernia is remanded. The Veteran contends, in essence, that her service-connected gastritis with hiatal hernia is more severe than reflected by the current 10 percent rating. In the May 2021 SSOC, the AOJ denied a rating in excess of 10 percent for gastritis with hiatal hernia because the Veteran's symptoms did not meet the criteria for a 30 percent rating under Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is warranted where hiatal hernia manifests with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for hiatal hernia that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest schedular rating of 60 percent rating 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. 38 C.F.R. § 4.114. The Veteran was afforded a VA examination in November 2020 for stomach disorders. However, the examiner used a disability benefits questionnaire (DBQ) form that specifically excluded GERD and similar conditions. While the examiner noted that the Veteran's symptoms included abdominal pain categorized as pronounced, the examiner did not note whether the Veteran had epigastric distress, substernal arm or shoulder pain, or other signs or symptoms (such as dysphagia, pyrosis, or reflux) indicative of a higher rating under Diagnostic Code 7346. As such, another examination is warranted. 3. Entitlement to a TDIU prior to January 23, 2018 is remanded. 4. Entitlement to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 prior to January 23, 2018 is remanded. As resolution of the claims of entitlement to increased ratings for a neck disability and gastritis may have an impact on the Veteran's claims of entitlement to a TDIU and DEA benefits, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the TDIU and DEA issues will be remanded as well. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal, including from Bronx Ortho. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 2. Obtain copies of any outstanding VA treatment records, to include any outstanding records from treatment providers authorized to provide care for the Veteran through the VA Community Care program that have been scanned into VistA Imaging. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The assistance of the Veterans Health Administration should be sought in electronically accessing the records, if necessary. If a release form is needed to request any records, ask the Veteran to complete a release. The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran and her representative should be notified. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination for purposes of assessing the current severity of her gastritis with hiatal hernia. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. In so doing, the examiner should clearly identify and comment on the existence and extent (or frequency, as appropriate) of all associated symptoms, to include any symptoms of vomiting, diarrhea, recurrent epigastric distress, dysphagia, regurgitation, and substernal or arm or shoulder pain, and/or any other symptoms that might be productive of severe or considerable impairment of health. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.