Citation Nr: 21010700 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 11-05 648 DATE: February 25, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. REMANDED Issue of entitlement to a rating in excess of 10 percent prior to October 27, 2014, and in excess of 30 percent since December 1, 2015, for osteoarthritis of the right knee is remanded. Issue of entitlement to a rating in excess of 10 percent prior to July 21, 2014, and in excess of 30 percent since September 1, 2015, for osteoarthritis of the left knee is remanded. FINDING OF FACT The evidence is in at least relative equipoise that the Veteran’s GERD has manifested with pyrosis (heartburn), substernal pain, hiccups, and nausea, but the preponderance of the evidence is against finding dysphagia, regurgitation, or that these manifestations were productive of considerable impairment of health. CONCLUSION OF LAW 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, 4.3, 4.7, 4.20, 4.113, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1982 to September 2003. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2008 and April 2010 rating decisions issued by the Department of Veterans Affairs (VA). See October 2009 Notice of Disagreement (NOD); May 2010 NOD; December 2010 Statement of the Case (SOC); December 2010 Rating decision; February 2011 Substantive Appeal (VA Form 9). In September 2014, the Board remanded the claim of entitlement to a rating in excess of 10 percent for the Veteran’s osteoarthritis of the left knee, osteoarthritis of the right knee, and GERD for further development of the evidence. September 2014 Board decision. During the pendency of the appeal, the Veteran’s right and left knee ratings under Diagnostic Code 5261 were granted evaluations under Diagnostic Code 5055 for knee replacements. See February 2015 Rating decision. The Veteran underwent a total knee replacement surgery on July 21, 2014 for her left knee and on October 27, 2014, for her right knee. Id. The Veteran’s 10 percent rating for osteoarthritis of the left knee was temporarily increased to 100 percent from July 21, 2014, to September 1, 2015, and then assigned a rating of 30 percent since September 1, 2015. Id. Likewise, the Veteran’s 10 percent rating for osteoarthritis of right knee was granted a temporary 100 percent rating from October 27, 2014, to December 1, 2015, and 30 percent thereafter. Id. The Board notes that the period from July 21, 2014 to September 1, 2015, for the Veteran’s osteoarthritis of the left knee is not on appeal because the 100 percent rating is considered a full grant of benefits for that period. Likewise, the period from October 27, 2014, to December 1, 2015, is not on appeal for the same reason. In November 2017, the Board remanded the claims for additional development through VA examinations. November 2017 Board decision. In December 2019, the Board remanded the claims again for additional development through VA examinations. December 2019 Board decision. The Agency of Original Jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran’s claims. August 2020 Supplemental Statement of the Case (SSOC). 1. Entitlement to an initial rating in excess of 10 percent for GERD. The Veteran asserts entitlement to a rating higher than 10 percent for GERD. May 2010 NOD; January 2021 Appellate brief. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s GERD is currently evaluated by analogy under Diagnostic Code 7346 for hiatal hernia and rated as 10 percent disabling. April 2010 Rating decision. Under Diagnostic Code 7346, a 10 percent rating is warranted for GERD that manifests with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. The next higher rating of 60 percent 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. Id. After careful and thorough consideration of the evidence, the Board finds that the Veteran’s GERD has manifested with symptoms that more closely approximates a 10 percent rating. A review of the medical treatment evidence shows that the Veteran has routinely denied having gastrointestinal symptoms such as nausea, vomiting, dark stools, diarrhea, or constipation. See e.g., December 2012 Private treatment evidence; June 2014 VA treatment evidence; August 2016 VA treatment evidence; August 2019 VA treatment evidence. The Veteran was afforded several VA examinations to evaluate her GERD during the period on appeal. The October 2016 VA examiner found the Veteran had pyrosis (heartburn), substernal pain, and recurrent nausea 4 or more times a year, but found no evidence of dysphagia or regurgitation, and opined that the Veteran’s GERD symptoms have no impact on her ability to work. October 2016 VA examination for esophageal conditions. The April 2018 and July 2019 VA examiners found no evidence of symptoms other than gas. April 2018 VA examination for esophageal conditions; July 2019 VA examination miscellaneous. The February 2019 and March 2020 VA examiners considered the Veteran’s reported chest and back pain, blackened stools, excessive hiccups, and nausea after eating, but opined that the symptoms were either not due to GERD or did not cause considerable impairment of health. See February 2019 VA examination miscellaneous; March 2020 VA examination for esophageal conditions. The March 2020 VA examiner further explained that the Veteran’s reported chest pain is heartburn, her back pain is due to gas, and her occasional hiccups are not a cause of concern. March 2020 VA examination for esophageal conditions. The March 2020 VA examiner added that her dark stools are likely due to medications or her vitamins, and not from gastrointestinal bleeding. See id. The Board finds that the findings and opinions from the April 2018 and July 2019 VA examiners not probative because they did not fully consider the Veteran’s lay statements. The October 2016, February 2019, and March 2020 VA examiners’ findings and opinion are probative as they are provided by medical professionals, are based on a thorough review of the lay and medical evidence, and supported by detailed rationale. The VA examination evidence support that the Veteran’s GERD manifested with no more than pyrosis (heartburn), substernal pain, and nausea, that do not cause considerable impairment to the Veteran’s health. The Board considered the Veteran’s statement of worsening symptoms since the November 2016 VA examination, including having symptoms of chest pain, back pain, blackened stools, excessive hiccups, and nausea after eating. September 2017 Appellate brief. In part on this basis, the Veteran was provided the March 2020 VA examination. While the Veteran had routinely denied having gastrointestinal symptoms to her medical treatment providers, the Board finds the Veteran is competent to report her symptoms and, thus, that the evidence is in at least relative equipoise that she experiences these symptoms. However, while the Veteran is competent to report having experienced these symptoms, the cause of her symptoms falls outside of the realm of knowledge of a lay person because they are medically complex questions. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the Veteran is not competent to state whether the symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As discussed above, the VA examiners found her chest and back pain to be heartburn and gas, and that the blackened stools are not from bleeding, but from her medication. The Board finds the Veteran’s statements to be probative in showing that she has heartburn, gas, hiccups, and nausea, but these symptoms more closely approximate the criteria for a 10 percent rating. See 38 C.F.R. § 4.114, Diagnostic Code 7346. Based on the more probative evidence of record, the Board finds that the Veteran’s GERD has manifested pyrosis (heartburn), gas, hiccups, and nausea, but that the preponderance of the evidence is against finding symptoms of dysphagia, regurgitation, or considerable impairment of health. Accordingly, entitlement to an initial rating in excess of 10 percent for GERD is not warranted. REASONS FOR REMAND 1. Issue of entitlement to a rating in excess of 10 percent prior to October 27, 2014, and in excess of 30 percent since December 1, 2015, for osteoarthritis of the right knee is remanded. 2. Issue of entitlement to a rating in excess of 10 percent prior to July 21, 2014, and in excess of 30 percent since September 1, 2015, for osteoarthritis of the left knee is remanded. Unfortunately, the Board finds that another remand is necessary before the issue of entitlement to an increased rating for the Veteran’s service-connected right and left knees can be adjudicated. The December 2019 Board decision remanded the Veteran’s claims of entitlement to increased ratings for her left and right knee for an examination consistent with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) and for clarification if the Veteran experiences additional functional limitations during her reported flare-ups of knees symptoms from prolonged standing. While the Board recognizes that the July 2019 VA examination prior to the December 2019 Board decision and the March 2020 VA examination obtained after the remand do provide passive range of motion testing and testing while nonweight-bearing, the Board finds that further clarification is still needed regarding the Veteran’s limitations during a flare-up of her knee symptoms. The March 2020 VA examiner considered the Veteran’s reported flare-up of knee pain while sitting, walking, working, laying down, sleeping, or at any given time; and finds that they cause significant limitations in the Veteran’s function. See March 2020 VA examination knee and lower leg conditions. However, the VA examiner provided no explanation as to why the Veteran’s reported flare-up symptoms cause significant limitations in functional ability, but would not result in any additional limitation in her left or right knee range of motion. See id. The Board, thus, finds that an addendum opinion from a VA examiner is needed. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination to address the severity of her knee disabilities. The medical professional should be provided a copy of the relevant medical evidence about the Veteran’s right and left knee 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 for the entire period on appeal. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare ups of the Veteran’s right and left knee disabilities. 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. If it is not possible to provide an estimated 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). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.