Citation Nr: 21010912 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-52 495 DATE: February 26, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for gastroesophageal reflux (GERD) is granted. Entitlement to service connection for residuals of partial uvulectomy is denied. Entitlement to service connection for retrosternal metastatic lymphoma is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for bilateral pes planus is remanded. Entitlement to an initial rating in excess of 10 percent for left acetabular metastatic lymphoma lesion (hereinafter left hip disability) prior to October 9, 2018, and a rating in excess of 10 percent for left thigh limitation of adduction thereafter is remanded. Entitlement to an initial compensable rating for left thigh limitation of extension is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s GERD was productive of symptoms of persistently recurrent epigastric distress with pyrosis, reflux, regurgitation, and substernal pain resulting in considerable impairment of health. 2. The Veteran does not have a current diagnosis for residuals of partial uvulectomy; the evidence weighs against a finding of a current disability at any time relevant to the period under appeal. 3. The Veteran does not have a current diagnosis for retrosternal metastatic lymphoma; the evidence weighs against a finding of a current disability at any time relevant to the period under appeal. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but no higher, for GERD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346. 2. The criteria for service connection for residuals of partial uvulectomy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for retrosternal metastatic lymphoma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2011 to May 2015. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015, August 2015, and February 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran requested a hearing before a member of the Board, in March 2020, he withdrew his request for a Board hearing. During the pendency of the appeal, an October 2018 rating decision assigned a 10 percent rating for the left thigh limitation of adduction pursuant to Diagnostic Code 5253, effective October 9, 2018. The agency of original jurisdiction (AOJ) noted that the assignment of a 10 percent rating for left thigh limitation of adduction was a correction of the prior grant of 10 percent for left hip limitation of flexion. A separate noncompensable rating was assigned for left thigh limitation of extension pursuant to Diagnostic Code 5251, effective May 13, 2015. As these increases do not represent a total grant of benefits sought on appeal, the claim for increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126–27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). GERD The Veteran is in receipt of an initial 10 percent rating for GERD, pursuant to Diagnostic Code 7399-7346. Diagnostic Code 7399 refers to disabilities of the digestive system, while Diagnostic Code 7346 refers to hiatal hernia. GERD is not listed in the rating schedule. In this case, the Board finds the use of the hyphenated Diagnostic Code 7399-7346 to be appropriate as the Veteran’s GERD symptoms are more closely captured by those listed under Diagnostic Code 7346. Pursuant to Diagnostic Code 7346, a minimum 10 percent rating is warranted for a hiatal hernia when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The criteria for a 60 percent rating are 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. During a July 2015 VA examination, the Veteran reported symptoms that included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, and substernal pain. The Veteran also reported vomiting, nausea, and sleep disturbance episodes four or more times per year. The examiner indicated that the Veteran takes daily medication for his condition. The examiner further indicated that the Veteran’s GERD impacts his ability to work as his symptoms worsen when exposed to heat while working outdoors. Based on the evidence of record, the Board finds that the Veteran’s GERD has manifested in symptoms most nearly approximating the requirements of a 30 percent rating. The Board finds that a rating in excess of 30 percent is not warranted at any point during the appellate period. The evidence does not show nor does the Veteran contend that his GERD manifested in symptoms of material weight loss, hematemesis, melena, or moderate anemia. Further, the Veteran’s GERD has not produced any other combinations of symptoms productive of severe impairment in health. Thus, as the Veteran’s GERD does not more nearly approximate a combination of symptoms productive of severe impairment of health, a higher 60 percent rating is not warranted. In sum, the Board finds that based on the preponderance of the evidence, and resolving any doubt in the Veteran’s favor, an initial 30 percent rating, but no higher, for GERD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Residuals of Partial Uvulectomy After considering all of the evidence of record, to include that set forth below, the Board concludes that the Veteran does not have a current diagnosis for any residuals of partial uvulectomy and has not had any at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s December 2013 service treatment records (STRs) indicate that he reported having a swollen, painful uvula that made it difficult to swallow. He underwent a uvulectomy that month. During a February 2014 VA examination, the Veteran reported that he had no symptoms from his partial uvulectomy except that he was aware of it. The examiner indicated that the Veteran’s condition does not impact his ability to work. The Veteran was afforded another VA examination in October 2018, in which he reported having difficulty enunciating certain words while speaking German and Arabic as well as constant sinus drainage. The examiner indicated that upon examination, the Veteran’s uvula was present. The examiner opined that while the Veteran had a partial uvulectomy during service, his uvula is present and appears normal. The examiner noted that while uvular constants are described in foreign dialects, the Veteran’s uvula is normal and should not affect his language skills. The examiner further noted that while there is no documented evidence of rhinitis or post-nasal drip, such conditions/symptoms would not be related to the uvula. The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, although there is record of treatment in service for a partial uvulectomy, no permanent residual of chronic disability subject to service connection has been shown in the record. Specifically, the VA examiners found no chronic residuals due to the Veteran’s partial uvulectomy. Additionally, the evidence of record does not indicate that the Veteran’s reported symptoms have caused him any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran’s application for service connection illustrates that he believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for residuals of partial uvulectomy. However, without evidence of a current disability or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection is denied. Retrosternal Metastatic Lymphoma After considering all of the evidence of record, to include that set forth below, the Board concludes that the Veteran does not have a current diagnosis for any residuals of retrosternal metastatic lymphoma and has not had any at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The February 2014 VA examiner noted that the Veteran’s retrosternal metastatic lymphoma resolved and that there were no chronic residuals or active pathology. Thus, the evidence of record indicates that the Veteran’s in-service retrosternal metastatic lymphoma resolved without causing any chronic disability. Additionally, the evidence does not show nor does the Veteran contend that his reported condition/symptoms have caused any functional impairment of earning capacity. See Saunders, 886 F.3d at 1356. While the Veteran’s application for service connection illustrates that the Veteran believes he has a current disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex as it requires the ability to interpret diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. The Board does not question the Veteran’s sincerity in his belief that service connection is warranted for retrosternal metastatic lymphoma. However, without evidence of a current disability or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. As such, service connection is denied. REASONS FOR REMAND Increased Rating for Bilateral Pes Planus The Veteran submitted a timely notice of disagreement (NOD) to the May 2015 rating decision, which granted service connection for pes planus and assigned an initial noncompensable rating. While the Veteran’s rating for his bilateral pes planus was granted an initial increased rating of 30 percent during the appellate period, this increase does not represent a total grant of benefits sought on appeal and as such the matter remains on appeal. See October 2018 rating decision. To date, a statement of the case (SOC) has not yet been issued. Accordingly, remand is required for the AOJ to issue a SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240–41 (1999). Increased Rating for Left Hip and Thigh Disabilities The Veteran's left hip and thigh was examined in February 2014 and October 2018. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that estimated ranges of motion should be provided during flare-ups, if feasible, even if the veteran is not experiencing one during the examination. Further, if the examiner determines that an estimate would be speculative, he or she must provide a complete explanation; a rationale indicating that the veteran is not having a flare-up at the time of the examination, without more explanation, is insufficient. Here, the February 2014 and October 2018 VA examinations did not comport to Sharp. Both examiners improperly determined that rendering an opinion on the Veteran's functional loss during flare-ups and on repetitive use over time would be speculative if not directly observed, contravening the Court's holding in Sharp. As such, remand is necessary to obtain a new VA examination regarding the nature and severity of the Veteran's left hip and thigh disabilities. Service Connection a Back Disability The Veteran was afforded VA examinations for the claimed disability in July 2015 and October 2018. The October 2018 VA examiner diagnosed the Veteran with degenerative arthritis and degenerative disc disease of the spine. The examiner concluded that the Veteran’s back conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while the Veteran did have an episode of low back pain in service, his MRI at discharge was normal. The Board regrets further delay, but additional development is necessary before the matter can be adjudicated. Specifically, the Board finds that remand is required in order to obtain an adequate VA medical opinion. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the VA medical opinion is inadequate as the examiner did not consider the Veteran’s lay statements regarding onset and duration of his symptoms, to include his reports of having back pain since service. Additionally, the examiner failed to adequately address the multiple notations of back pain/treatment in the Veteran’s STRs, to include his diagnosis of lumbago in 2014 and mild or early degenerative disc disease in August 2014. Accordingly, the Board finds that remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s back disability. Moreover, the Board has a duty to consider all theories of entitlement raised by the record. In this regard, the Board finds that the theory of secondary service connection has been raised and must be addressed. See June 2020 brief. Specifically, the Veteran contends that his back disability is secondary to his service-connected hip and thigh conditions. Presently, there is no nexus opinion of record as to whether the Veteran’s back disability was caused by or aggravated by his service-connected hip and thigh disabilities. Consequently, remand is necessary to obtain an addendum VA opinion addressing secondary service connection. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a SOC that addresses the issue of entitlement to an initial increased rating for bilateral pes planus. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Obtain updated VA treatment records. 3. After completing directive #2, schedule the Veteran for a VA examination to determine the current severity of the Veteran’s left hip and thigh disabilities. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. Range of motion testing for the both hips should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the Veteran experiences pain during range of motion testing, the examiner must note the point at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner should consider whether there is likely to be additional range of motion loss during flare-ups and as a result of pain, weakness, fatigability, or incoordination, irrespective of whether the Veteran is experiencing a flare-up at the time of the examination and with consideration of the Veteran’s statements regarding flare-ups, specifically their frequency, duration, characteristics, severity, and/or associated functional loss. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to deficiency in the state of general and 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). 4. After completing directive #2, forward the claims file to a qualified medical professional to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s back disability. If the examiner determines that another VA physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner is asked to provide an opinion as the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability began in or is otherwise etiologically related to service; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability is proximately due to, the result of, his service-connected hip and thigh disabilities; c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability has been aggravated beyond normal progression by his service-connected hip and thigh disabilities? A complete rationale must be provided for all opinions provided. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.