Citation Nr: 21008742 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 11-05 950 DATE: February 17, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected allergic rhinitis is denied. An initial increased disability rating of 30 percent, but no higher, for service-connected gastroesophageal reflux disease (GERD) is granted. An initial increased disability rating of 40 percent, but no higher, for service-connected right upper extremity nerve disability, for the period prior to September 4, 2020, is granted. Entitlement to a disability rating higher than 40 percent for service-connected right upper extremity nerve disability, for the period from September 4, 2020, is denied. REMANDED Entitlement to an initial compensable disability rating prior to May 9, 2013, and to a disability rating higher than 10 percent as of that date, for service-connected left knee internal derangement is remanded. Entitlement to an initial disability rating higher than 20 percent for service-connected left shoulder internal derangement with Bankhart repair is remanded. Entitlement to an initial disability rating higher than 20 percent for service-connected right shoulder rotator cuff and labral tear with acromioclavicular (AC) joint separation is remanded. Entitlement to an initial compensable disability rating prior to September 4, 2020, and to a disability rating higher than 30 percent as of that date, for service-connected left shoulder scar is remanded. REFERRED ISSUE In July 2013, the Veteran filed a claim for service connection for depression with anxiety on VA form 21-526b. The issue was not adjudicated by the Agency of Original Jurisdiction (AOJ), and is, therefore, referred to the AOJ for proper action. FINDINGS OF FACT 1. The Veteran’s service-connected allergic rhinitis has not been found to result in any nasal blockage and has not been manifested by polyps at any point during the appeal period. 2. The Veteran’s service-connected GERD is manifested by persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and episodes of sleep disturbance and nausea, each occurring four or more times per year, lasting less than one day per episode; but vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, have not been shown. 3. Resolving reasonable doubt in the Veteran’s favor, prior to September 4, 2020 his right upper extremity nerve disability has been manifested by disability comparable to moderate incomplete paralysis of the upper radicular group, and since September 4, 2020, by moderate incomplete paralysis of all radicular groups; but not by any severe incomplete or complete paralysis at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for service-connected allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial increased rating of 30 percent, but no higher, for the service-connected GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.3, 4.114, DC 7346. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial rating of 40 percent, but no higher, for the right upper extremity nerve disability, prior to September 8, 2020, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, DC 8520. 4. The criteria for a disability rating higher than 40 percent for the right upper extremity nerve disability, as of September 8, 2020, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2006 to November 2008. The current appeal comes before the Board of Veterans’ Appeals (Board) from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In June 2018, the Board remanded the claims discussed herein for further development. In a May 2014 rating decision, the RO increased the disability ratings for the Veteran’s service-connected left shoulder and knee disabilities, and GERD. In a September 2020 rating decision, the RO increased the disability rating for the Veteran’s service-connected right upper extremity nerve disability, and his left and right shoulder disabilities. The RO also assigned a higher, single rating for the Veteran’s service-connected scars, and assigned a separate rating for impairment of the humerus associated with the right shoulder disability. Where the Veteran has not appealed the assigned separate rating, however, the Board will not address that rating in this decision. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Allergic rhinitis The Veteran’s allergic rhinitis has been rated under Diagnostic Code 6522 for allergic or vasomotor rhinitis. Without polyps, more than 50 percent obstruction of the nasal passage on both sides, or a complete obstruction on one side is required for a compensable rating of 10 percent. With polyps, the disability warrants a 30 percent rating assignment. 38 C.F.R. § 4.97, DC 6522. The VA examination reports of record do not describe the Veteran’s rhinitis as involving polyps, or of involving greater than 50 percent obstruction of both nasal passages, or complete obstruction of one nasal passage. A September 2008 VA examination report noted that the Veteran’s allergic rhinitis was seasonal. May 2013 and September 2020 VA examination reports specifically noted that his allergic rhinitis did not result in greater than 50 percent obstruction of both nasal passages, or permanent hypertrophy of the nasal turbinates. There were also no polyps noted on either examination, and the Veteran was found not to have any granulomatous conditions. The September 2020 VA examination report did note that the Veteran had permanent hypertrophy of the nasal turbinates, but such atrophy did not result in obstruction sufficient to warrant a compensable rating. As noted above, a compensable rating for rhinitis requires a 50 percent obstruction of the nasal passage on both sides or a complete obstruction on one side. The VA examination reports specifically determined that such obstruction was not present and there were no findings of polyps during any examination. The Board has not overlooked the Veteran’s lay statements concerning his allergic rhinitis. In this regard, he has reported having allergic rhinitis since service, and he has maintained he has had a constant runny nose. He is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning symptomatology have been credible. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). There is no basis, however, for concluding that a layperson such as the Veteran is competent to discern the nature, extent, and severity of his allergic rhinitis, in the absence of specialized medical training, which in this case he has not established. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, his VA clinical records have indicated that his rhinitis has been controlled with medications. Thus, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher rating under the applicable diagnostic code. As such, a compensable rating is not warranted for the Veteran’s allergic rhinitis at any time during the appeal period for this claim. The VA examination and clinical reports demonstrate a diagnosis of allergic rhinitis without additional symptoms of polyps or nasal passage obstruction. No additional available evidence refutes these findings. Moreover, there is no evidence of record to suggest that the Veteran’s symptoms are more appropriately rated under another diagnostic code or that his symptoms are outside the norm such that they are not contemplated by the rating schedule. The Veteran has not presented argument or evidence otherwise. Thus, a preponderance of the evidence is against finding that the Veteran is entitled to a compensable rating for his rhinitis. Therefore, the claim is denied. GERD The Veteran is currently assigned a noncompensable disability rating for the period prior to May 9, 2013, and a 10 percent rating as of that date. He has contended that a higher rating is warranted. GERD is rated by analogy to hiatal hernia under Diagnostic Code 7346 of 38 C.F.R. § 4.97. Under these criteria, a 10 percent rating is assigned when two or more of the symptoms required for a 30 percent evaluation are present, but are of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned 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. Turning to the evidence of record, the Veteran’s service treatment records (STRs) documents treatment for GERD just prior to his separation from service. The September 2008 VA examination report noted that the Veteran’s GERD symptoms consisted of heartburn, and that his heartburn was alleviated with medication. In the May 2013 VA examination report, he was noted to have GERD symptoms consisting of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbance episodes occurring four or more times per year, lasting less than one day per episode. Identical symptoms were noted in a September 2020 VA examination report, with the additional symptom of nausea, with episode occurring four or more time per years, lasting less than one day per episode. After a careful review of this evidence, the Board finds that a 30 percent disability rating, but no higher, is warranted for the service-connected GERD. The May 2013 and September 2020 VA examination reports clearly document the Veteran’s symptoms of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, and episodes of sleep disturbance and nausea, which are particularly described in the criteria for a 30 percent rating. 38 C.F.R. § 4.114, DC 7346. Accordingly, with resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that a 30 percent for his service-connected GERD is warranted. Although the Board has determined that a 30 percent initial rating is warranted, there is no evidence of record showing that the Veteran experiences vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health such as to warrant the next higher 60 percent rating. Accordingly, the preponderance of the evidence is against finding that the Veteran is entitled to a disability rating higher 30 percent at any point during the appeal period. Right upper extremity nerve disability The Veteran is currently assigned a noncompensable disability rating for the period prior to September 4, 2020, and a 40 percent rating as of that date. He seeks a higher rating. In this regard, the Board notes that diseases of the peripheral nerves are evaluated under the Schedule of Ratings for Diseases of the Peripheral Nerves. See 38 C.F.R. § 4.124a, DCs 8510-8540, 8610-8630, and 8710-8730. The Veteran’s right upper extremity nerve disability is currently rated under Diagnostic Code 8513, which applies to paralysis of all radicular groups of the extremity. He is right hand dominant, thus his right side is rated as the major extremity. For the major extremity, under DC 8513, a 20 percent rating is warranted for mild incomplete paralysis; a 40 percent rating is warranted for moderate incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis; an 80 percent rating is warranted for complete paralysis of the major extremity, respectively. The September 2008 VA examination report indicated that during initial examination of the nerve disability, electrophysiological findings were consistent with neuropathy involving the axillary and musculocutaneous nerve on the right side without any significant denervation changes in the muscles innervated by these muscles consistent with a partial mild brachial plexopathy involving the upper trunk on the right side. In his March 2011 substantive appeal, the Veteran described right arm pain and numbness that was of great concern to him. He described severe complication, including experiencing deformity of the hand and arm, leading to contractures, partial to complete periodical paralysis, and partial loss of sensation. He further described injuring the hand frequently due to diminished sensation. He maintained that he had daily weakness, numbness, and shoulder pain. He assessed that he had moderate, incomplete paralysis. In the May 2013 VA examination report, the examiner noted mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness of the right upper extremity. The examiner assessed mild incomplete paralysis of the right musculocutaneous and long thoracic nerves. In a September 2020 VA examination report, the examiner noted the Veteran’s symptoms as consisting of moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right upper extremity. The examiner assessed moderate incomplete paralysis of the right ulnar and musculocutaneous, and long thoracic nerves, and moderate incomplete paralysis of the lower radicular group. After a careful review of this evidence, the Board finds that a 40 percent disability rating, but no higher, is warranted for the service-connected right upper extremity nerve disability for period prior to September 4, 2020. In reaching this finding, the Board notes that, even from the time of the September 2008 VA examination, the Veteran was found to have neuropathy involving multiple nerves of the right upper extremity, including specifically the axillary and musculocutaneous nerves, which constitute part of the upper radicular group. See Joshua A. Waxenbaum, et al., Anatomy, Head and Neck, Cervical Nerves, National Center for Biotechnology Information, July 27, 2020, https://www.ncbi.nlm.nih.gov/books/NBK538136/. The May 2013 VA examination report additionally noted involvement of the musculocutaneous nerve, which also involves the upper radicular group. See id. As for the severity of the Veteran’s nerve disability, the Veteran credibly described his right arm pain and numbness and the deformity of the hand and contractures that he had experienced. He further described having periodical paralysis, and partial loss of sensation, which led to frequent injuries of the hand. The Veteran is competent to report his assessment of the severity of his nerve disability symptoms. Additionally, in the May 2013 VA examination report, the examiner described moderate paresthesias and/or dysesthesias, although only mild numbness and pain was noted. Based on the totality of the evidence, including the Veteran’s lay reports, and affording him the benefit of the doubt, the Board finds that the evidence supports a finding that the Veteran has suffered from moderate, incomplete paralysis associated with the right upper extremity nerve disability throughout the entirety of the appeal period. Although the findings from the September 2008 and May 2013 VA examination reports only noted that nerves from the upper radicular group were affected, the Board notes that moderate incomplete paralysis of the upper radicular group also warrants the assignment of a 40 percent disability rating. See 38 C.F.R. § 4.124a, DC 8510. Although the Board has determined that a 40 percent rating is warranted for the entire appeal period, there is no evidence of record showing that the Veteran has experienced severe incomplete paralysis or complete paralysis of any upper extremity nerve such as to warrant a higher rating. In this regard, no VA examination report has assessed anything more than moderate symptoms or moderate incomplete paralysis. The Veteran himself assessed that he had moderate severity of incomplete paralysis in a March 2011 statement submitted with his substantive appeal. Thus, a rating higher than 40 percent is not warranted. REASONS FOR REMAND Right and left shoulder, and left knee disabilities With respect to the Veteran’s higher rating claims for the right and left shoulder disabilities, the Board observes that, when the AOJ increased the disability ratings for these disabilities in the September 2020 rating decision, it indicated that the higher ratings constituted a full grant of the benefits sought on appeal with respect to those disabilities. Notably, however, neither disability was assigned a 100 percent rating, or even the highest schedular rating, respectively, and there is no indication that the Veteran indicated that he was or would be satisfied with a 20 percent rating for each disability. Given this determination, the AOJ did not issue the Veteran an SSOC on these claims prior to their return to the Board, as required by VA regulations. See 38 C.F.R. § 19.31(b). As for these disabilities and the service-connected left knee disability, the Veteran was afforded a VA examination of these disabilities in September 2020, pursuant to the Board’s June 2018 remand directives. Importantly, however, the examination results do not contain adequate findings to properly adjudicate these claims. First, the Board remanded the claims to obtain specific information pertaining to the ranges of motion of the bilateral shoulder and left knee on both active and passive motion, and in weight-bearing and non-weight bearing, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). With respect to the right shoulder and left knee ranges of motion, the examiner noted that the Veteran had pain on passive motion and in non-weight bearing of each joint, however, the examiner did not provide the results of range of motion testing on passive motion or the results in weight-bearing versus non-weight bearing. With respect to the left shoulder, the examiner indicated that range of motion testing for the left shoulder could not be performed because the Veteran had been in a motor vehicle accident, and was awaiting surgery. A remand by the Board confers on a claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, where, as here, a veteran reports having flare-ups of joint disability, the examination reports must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). This description was not adequately provided for the Veteran’s shoulder disabilities, and while the September 2020 VA examination report of the Veteran’s left knee indicated that he did not report flare-ups, these findings contradict prior VA examination findings from December 2008 and May 2013 examination reports, which noted left knee disability flare-ups. Further, the Board notes that, while the VA examiner indicated in the September 2020 VA examination report of the Veteran’s left knee that there was no left knee joint instability, VA clinical reports, including a January 2020 physical therapy consultation and a July 2020 VA orthopedic surgery consultation report, noted that he used a knee brace for stabilization. He additionally testified that he required a knee brace during his April 2018 Board hearing. Clarification is warranted. Thus, due to the deficiencies in the September 2020 VA examination reports of the Veteran’s bilateral shoulders and left knee, remand is necessary to afford the Veteran new VA examinations to addresses the current severity of these disabilities, to include obtaining adequate findings in accordance with Correia and Sharp. Left shoulder scars With respect to the Veteran’s left shoulder scars, the Board observes, where the September 2020 VA examination report of his left shoulder indicated that he was awaiting surgery for the shoulder, that the service-connected scars may very well have been affected by any surgical procedures. Accordingly, remand of this claim is additionally warranted to afford the Veteran a new VA scar examination to determine the current severity of all service-connected left shoulder scars. As the Veteran was noted to be awaiting surgery on the left shoulder, available surgical records should also be obtained and associated with the claims file on remand. Accordingly, these matters are REMANDED for the following action: 1. Obtain the Veteran’s surgical records pertaining to recent left shoulder surgery. If the surgery was conducted by a private provider, ask the Veteran to complete a VA Form 21-4142 for any such provider, as necessary. Make two requests for all records from all identified providers, unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected bilateral shoulder and left knee disabilities—as well as the service-connected left shoulder scars. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating each disability under the pertinent rating criteria. The examiner should test the range of motion and pain in the Veteran’s bilateral shoulders and left knee in active and passive motion, and in weight-bearing and non-weight bearing (with results expressed in degrees). The same range of motion testing should also be accomplished for the Veteran’s right knee (for comparison purposes). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of reported flare-ups of the bilateral shoulders and left knee, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer an opinion as to whether there would be additional limits on functional ability during reported flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. Given that the VA clinical reports of left knee instability and giving way, the examiner should also indicate the severity of any recurrent left knee subluxation or lateral instability. If the examiner determines that the Veteran does not present recurrent subluxation or lateral instability, he or she must reconcile such findings with the clinical and lay reports of record. The examiner should also determine the current nature and severity of the Veteran’s service-connected left shoulder scars, and report findings on the appropriate examination report. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.