Citation Nr: 21011086 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-32 304 DATE: February 26, 2021 ORDER New and material evidence has not been received and the claim to reopen a claim of service connection for an eye disability, to include allergic conjunctivitis, pinguecula, and right eye refractive amblyopia (eye disability) is denied. Entitlement to a disability rating in excess of 20 percent for bronchial asthma is denied. Entitlement to a disability rating in excess of 10 percent for cervical strain and degenerative arthritis of the spine (cervical spine disability) before March 13, 2017, is denied. Entitlement to a disability rating in excess of 20 percent since March 13, 2017, for a cervical spine disability is denied. Entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease with chronic gastritis (GERD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) effective September 26, 2012 through February 28, 2017, is granted. REMANDED Entitlement to a rating in excess of 40 percent for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a compensable rating for a right hand middle finger disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. FINDINGS OF FACT 1. In a November 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for an eye disability, to include allergic conjunctivitis, pinguecula, and right eye refractive amblyopia; the Veteran did not appeal the decision and new and material evidence was not received within the one year appeal period. 2. In a January 2016 rating decision, the VA RO denied service connection for an eye disability; the Veteran did not appeal the decision and new and material evidence was not received within the one year appeal period. 3. Evidence associated with the record since the January 2016 decision is cumulative or redundant of evidence previously of record, does not relate to unestablished facts, or does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for an eye disability. 4. The Veteran’s bronchial asthma results in a forced expiratory volume in one second (FEV-1) of no less than 61 percent of the predicted value, a ratio of FEV-1 to forced vital capacity (FVC) of no less than 87 percent, does not require in at least monthly visits to a physician for required care of exacerbations, and does not result in at least 3 courses of systemic corticosteroids per year or immuno-suppressive medication. 5. Prior to March 12, 2017, the Veteran’s cervical spine disability was manifested by pain and limited motion with forward flexion to 35 degrees or greater and a combined range of motion no less than 180 degrees. He did not experience spasms resulting in an abnormal gait or abnormal spinal contour, ankylosis of the cervical spine, or objective neurologic abnormalities. 6. From March 13, 2017, to the present, the Veteran’s cervical spine disability is manifested by pain and limited motion with forward flexion to 20 degrees or greater. He does not experience ankylosis of the cervical spine or objective neurologic abnormalities. 7. GERD with gastritis does not result in considerable impairment of health. 8. From September 26, 2012 through February 28, 2017, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for an eye disability have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for an initial disability rating in excess of 20 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.22, 4.97, Diagnostic Code 6602. 3. The criteria for an initial disability rating in excess of 10 percent for a cervical spine disability before March 13, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 4. The criteria for a disability rating in excess of 20 percent since March 13, 2017, for a cervical spine disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 5. The criteria for an initial disability rating in excess of 10 percent for GERD with gastritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346. 6. The criteria for TDIU since September 26, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1985 to September 1985, and in the United States Army from September 2002 to February 2003 and from April 2010 to September 2012. The Veteran also served in the Puerto Rico National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal of November 2012, January 2016, and April 2017 rating decisions by the VA RO. In February 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. In January 2020, the Board remanded the case for additional development. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). New and Material Evidence for an Eye Disorder In May 2010, while the Veteran was on active duty for training (ADT) in the National Guard, he was sprayed in the eyes with pepper spray for training purposes. He asserts that he and others received stronger versions instead of the pepper spray designed for training demonstrations. He and several other members of his unit had to receive medical treatment. Since that time, the Veteran states he has had vision problems and pain in his eyes. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s claim of service connection for an eye disability in a November 2012 rating decision, finding that there was no link or connection between service and the Veteran’s various eye diagnoses (allergic conjunctivitis, pinguecula, and refractive amblyopia). A May 2012 VA examiner determined that all eye disabilities would not result from a single injury to the eye from pepper spray; medical literature indicated it is harmless to corneal tissues. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). The RO denied the Veteran’s claim to reopen a claim of service connection for an eye disability in a January 2016 rating decision, finding that there was no new and material evidence of a nexus between any eye disability and service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015). The evidence received since the January 2016 rating decision does not include evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. VA treatment records were added to the file but do not suggest any relationship between an eye disability and service. The Veteran has resubmitted service records establishing that the pepper spray incident occurred in the line of duty while the Veteran was on ADT. In addition, he has again asserted eye symptoms since that time. While the Veteran testified that he has conjunctivitis due to the pepper spray and his vision has worsened, similar assertions were previously considered at the time of the November 2012 rating decision. Although the credibility of this evidence is presumed for purposes of reopening the claim, see Justus v. Principi, 3 Vet. App. 510, 513 (1992), this evidence still is not new and material; rather it is cumulative and redundant of the evidence already of record. Further, the evidence is not material. The Veteran had an acute injury to the eye in service and now has several eye diagnoses. The new evidence does not suggest a nexus between any current eye diagnosis and service, which is what is lacking in this case. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an eye disability. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim, and the Veteran’s petition to reopen such claim is denied. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disabilities are not and cannot be adequately rated under the Rating Schedule. 1. 20 percent rating for bronchial asthma The Veteran’s bronchial asthma is rating under Diagnostic Code 6602. Bronchial asthma is evaluated based on findings from a pulmonary function test (PFT) in particular, Forced Expiratory Volume in one second (“FEV-1”) and Forced Expiratory Volume in one second/Forced Vital Capacity (“FEV-1/FVC”). Under Diagnostic Code 6602, bronchial asthma is assigned a ten percent rating with the following pulmonary function test results: FEV-1 is 71- to 80-percent of predicted; or the FEV-1/FVC is 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy is required. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned for an FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. The post-bronchodilator findings for these PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. See 38 C.F.R. § 4.96(d)(5). Initially, the Board notes that the Veteran’s asthma is rated at 20 percent. This rating has been assigned because the Veteran’s asthma pre-existed both of his active service periods. The Veteran’s asthma has been service connected since separation of the second active duty period, September 26, 2012. Before active duty, the Veteran was noted in July 2006 to have a mild obstructive ventilator defect responsive to bronchodilator therapy. In December 2006, the Veteran reported it had been diagnosed in the 1990s, approximately 1996. For a while, the asthma was mild, and he did not even need an inhaler. He had an oral medication. After the prior active duty period when he was deployed to Kuwait in 2002-2003, the asthma worsened, and he needed to use an inhaler daily. Based upon the foregoing evidence, the Board finds that before active duty exacerbated his asthma, the Veteran, at worst, needed only intermittent inhalational or oral bronchodilator therapy, or a 10 percent level of disability. When determining the rating for disabilities that were aggravated by service, the rating will be reflective on the degree of which in-service aggravation occurred over the pre-existing state of the disability. See 38 C.F.R. § 4.22. Accordingly, at all relevant times, the Veteran’s rating for asthma will be based upon the rating assigned based upon the Diagnostic Code 6602 schedular criteria less the 10 percent level of disability that existed when the Veteran entered active duty. In May 2012 the Veteran underwent a VA examination during which a PFT report recorded the Veteran’s pre-bronchodilator FVC as 46 percent of predicted value, his FEV-1 as 25 percent of predicted value, and his FEV-1/FVC as 113 percent of predicted value. His post-bronchodilator FVC was recorded as 58 percent of predicted value, his FEV-1 as 61 percent of predicted value, and his FEV-1/FVC as 104 percent predicted value. The VA examiner further indicated that the FEV-1/FVC results most accurately reflected the Veteran’s pertinent pulmonary function, and that the PFT results accurately reflected the Veteran’s pulmonary function. The Veteran stated his asthma was worse at night and he needed more medication to control the symptoms. He did not have any hospitalizations but experienced more exacerbations. He had been to the emergency room twice in the past year. The Veteran reported daily use of bronchodilator therapy and inhalational antiinflammatory medication. He did not need corticosteroid or antibiotic medication. He saw a pulmonologist less than on a monthly basis. A VA PFT dated in March 2013 recorded the Veteran’s pre-bronchodilator FVC as 33 percent of predicted value, his FEV-1 as 31 percent of predicted value, and his FEV-1/FVC as 94 percent of predicted value. His post-bronchodilator FVC was recorded as 75 percent of predicted value, his FEV-1 as 72 percent of predicted value, and his FEV-1/FVC as 95 percent predicted value. An October 2019 VA treatment note indicated the Veteran’s asthma symptoms were controlled with maintenance therapy and rescue medication. In December 2019, a VA pulmonologist noted the Veteran had a severe obstructive ventilatory impairment responsive to bronchodilator therapy. Lab tests showed no acid base disturbance and normal oxygenation. The Veteran stated he felt better without new complaints, emergency room visits, or hospitalizations. The pulmonologist believed the asthma was well controlled. In July 2020, the Veteran underwent a VA examination during which a PFT report recorded the Veteran’s pre-bronchodilator FVC as 60 percent of predicted value, his FEV-1 as 43 percent of predicted value, and his FEV-1/FVC as 72 percent of predicted value. His post-bronchodilator FVC was recorded as 78 percent of predicted value, his FEV-1 as 68 percent of predicted value, and his FEV-1/FVC as 87 percent predicted value. The VA examiner further indicated that the FEV-1/FVC results most accurately reflected the Veteran’s pertinent pulmonary function, and that the PFT results accurately reflected the Veteran’s pulmonary function. The Veteran reported daily use of bronchodilator therapy and inhalational antiinflammatory medication. He experienced chest tightness, coughing, shortness of breath, especially at night, and dyspnea upon mild efforts such as walking one block. There had not been any hospitalization or emergency room treatment. The examiner determined the Veteran’s asthma would affect the Veteran in an occupational environment requiring strenuous activities such as heavy lifting but would not prevent him from working in a sedentary position such as clerical work. There is no evidence that the Veteran received systemic treatment with corticosteroids at least three times in a year or the Veteran required monthly care by a physician for asthma exacerbations. Furthermore, based on the pulmonary function tests, the Veteran did not have a post-bronchodilator FEV-1 as low as or even near 40 to 55 percent of predicted value or a FEV-1/FVC of 40 to 55 percent. Thus, for the period on appeal, the Board hereby finds that the evidence of record does not warrant a rating in excess of 20 percent (30 percent less the 10 percent pre-service level of disability), as the probative evidence of record reflects that the symptomatology of the Veteran’s service-connected respiratory disability during this time period most nearly approximates the criteria for a 30 percent disability rating. Moreover, neither the VA examiners nor other medical professionals of record have indicated that the reported PFT results did not accurately represent the level of pulmonary impairment manifested by the Veteran’s asthma. The Board therefore finds that the PFT results documented in the record provide an appropriate basis for rating the Veteran’s service-connected asthma because they are an accurate representation of the Veteran’s respiratory impairment. See 38 C.F.R. § 4.96(d)(2). The Board is aware that when the United States Army discharged him, it found the asthma disability 60 percent disabling. Based upon the Board’s review of the service documents, this determination was for the purpose of determining the Veteran’s retirement payment, including disability, as paid directly by the Army. It does not indicate it relates to VA disability payment or the VA Rating Schedule and does not cite VA law or regulations. The Board is not free to ignore VA’s duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). Accordingly, the Board must make its award on the schedular criteria set forth in Diagnostic Code 6602 and not any determination made by the United States Army for its purposes. Based on the foregoing, the Veteran does not meet the criteria for the next highest evaluation, 50 percent (60 percent based upon the schedular criteria less pre-service 10 percent level of disability). Further, the Board does not find evidence that the evaluation for the Veteran’s asthma should be any different for any separate period based on the facts found during the appeal period. Accordingly, the Veteran’s claim for an initial rating higher than 10 percent is denied. 2. 10 percent rating for cervical spine disability before March 13, 2017 and 20 percent rating thereafter When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the cervical spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. During the appeal period from September 14, 2015, the effective date of service connection, to March 12, 2017, the Veteran underwent a VA examination in October 2015 and range of motion testing showed, at worst, forward flexion to 35 degrees and a combined range of motion no less than 180 degrees. During examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. The Veteran has not described a range of motion which would warrant a higher rating. In this regard, during the October 2015 examination he did report flare-ups but described the flare-ups as consisting of weekly occurrence lasting several hours and noted functional impairment included loss of overhead activities. He did not indicate any further reduction of motion. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. While spasms have been noted, the spasms have not resulted in an abnormal gait or abnormal spinal contour. Ankylosis is not shown. Given the above, a rating higher than 10 percent from September 14, 2015, to March 12, 2017, is not warranted. For the period starting on March 13, 2017, to the present, the Veteran underwent a VA examination on March 13, 2017 with range of motion testing demonstrating, at worst, forward flexion to 20 degrees and a combined range of motion no less than 150 degrees. The Veteran has received two subsequent VA examinations in March 2018 and March 2020. Range of motion testing was performed and showed, at worst, forward flexion to 20 degrees and a combined range of motion no less than 115 degrees. During these examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the March 2017 examination he reported flare-ups as consisting of overhead activities and repetitive motions of the neck exacerbating his disability. The Board interprets this statement as an increase in pain. In the March 2018 VA examination, he described sharp pain during a flare-up and he is limited in lifting/carrying heavy objects. In the March 2020 VA examination, the Veteran described increased pain occurring weekly and lasting hours. He did not, however, describe any additional loss of motion with repetitive use, only a general loss of ability to perform overhead activities. Furthermore, the VA examiner specifically determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period or during a flare-up. Likewise, at his February 2019 hearing he stated he does not have pain all the time, but when he does, he feels a very heavy pressure and it will cause him to lie down. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. The Board notes similar range of motion findings by the Veteran’s physical therapist in June 2019, January 2020, and February 2020. Ankylosis is not shown. Given the above, a rating higher than 20 percent since March 13, 2017 is not warranted. Regarding relevant neurological findings, in January 2019, the Veteran reported pain radiating from the cervical spine down his back and scapular area. At that time, he was diagnosed with an acute exacerbation of his cervical spine disability with a trapezium spasm. A February 2019 MRI demonstrated multiple disc bulges in the cervical spine. He was diagnosed with cervical spine degenerative joint disease and degenerative disc disease. However, in the October 2015, March 2017 March 2018, and the March 2020 VA examinations, neurological testing was always normal, and the VA examiners determined the Veteran did not have any radiculopathy. There is no other evidence in significant conflict with these findings. Therefore, the Board finds there are no other symptoms which should be addressed by a separately assigned disability rating. In sum, the Veteran’s claims for higher ratings for his cervical spine disability for the periods from September 15, 2015, to March 12, 2017, and from March 13, 2017, to the present are denied. 3. 10 percent rating for GERD with gastritis The Veteran is service connected for GERD, currently rated at 10 percent. In addition, he also has gastritis, which is also service connected but is not separately rated as the GERD is considered the predominant disability. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114 The Veteran contends that he is entitled to a higher rating because he experiences reflux symptoms, nausea (but usually not vomiting), irritability of his digestive system, especially at night, and restrictions to his diet (such as avoiding spicy foods). The Veteran’s GERD is rated by analogy to 38 C.F.R. § 4.114, Diagnostic Code 7346, for hiatal hernia. Pursuant to Diagnostic Code 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 observes that the words “considerable” and “severe” are not defined in the Rating Schedule. “Considerable” is defined as “large in extent or degree.” Merriam-Webster’s Collegiate Dictionary 267 (11th ed. 2012). “Severe” is defined as “very painful or harmful.” Id. at 1140. In assigning a rating under Diagnostic Code 7346, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board finds the Veteran’s GERD with gastritis is manifested in two or more symptoms for the 30 percent evaluation. The symptoms, however, are not productive of considerable impairment of health. In May 2015, the Veteran reported anti-reflux therapy provided a partial response, but the medical provider noted the Veteran did not have any alarming features of dysphagia, odynophagia, nighttime symptoms, weight loss, melena, bleeding, or nausea and vomiting. The following month, an endoscopy revealed he had non- erosive gastritis. In November 2017, VA medical providers noted the Veteran had an outside endoscopy again demonstrating gastritis, but the Veteran did not have abdominal pain or nausea or vomiting. Biopsies from endoscopies establish the Veteran has Helicobacter Pylori bacteria. In an October 2015 VA examination, the Veteran stated his acid reflux worsened a few years prior despite medication. He experienced symptoms of pyrosis, reflux, regurgitation, and substernal pain. He had 4 or more episodes a year of sleep disturbance and nausea, but each episode lasted less than a day. The VA examiner stated the symptoms did not have any occupational impact. In a March 2017 VA examination, the Veteran reported a burning sensation in his epigastric area accompanied by reflux. He stated these episodes were frequent. He used two medications and had a restricted diet to avoid certain foods. He also used extra pillows to avoid epigastric episodes at night. He experienced symptoms of pyrosis, reflux, regurgitation, and substernal pain. He had 4 or more episodes a year of sleep disturbance and nausea and vomiting, but each episode lasted less than a day. The VA examiner stated the symptoms did not have any occupational impact. In a December 2017 VA examination focused on the Veteran’s gastritis, he described heartburn, bloating, belching, and acid reflux. His symptoms were worse with meals but better with medication. The symptoms occurred 4 or more times a year, but the VA examiner stated the symptoms are not severe, and they last less than a day. Abdominal pain occurred on a monthly but periodic basis. The Veteran also experienced mild nausea. There had not been any incapacitating episodes and the symptoms did not affect work. Most recently, in a July 2020 VA examination, the Veteran reported he feels worse than the last time with constant reflux. The reflux is worse when he sleeps. He has persistent recurrent epigastric distress, reflux, regurgitation, and substernal pain. He has 4 or more episodes a year of sleep disturbance and nausea and vomiting, but each episode lasts less than a day. The VA examiner stated the symptoms did not have any occupational impact. The examiner notes that, considering GERD alone, the Veteran could work a full-time job. The Veteran testified he experienced reflux, and irritation especially at night, and nausea but no vomiting. He also modified his diet to avoid certain foods. A higher rating 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. While the Veteran experienced most of the foregoing symptoms at one point during the appeal period, the competent medical evidence does not establish that his symptoms are productive of considerable impairment of health. The Veteran did not experience more significant symptoms such as hematemesis, melena, circulatory disturbance after meals, hypoglycemic reaction, abdominal distention, constipation, anemia, weight loss or any symptom otherwise productive of considerable impairment of health. There is no evidence of periods of incapacity, hospitalizations, or more aggressive treatment. Further, no medical provider has characterized the symptoms as something that impaired the Veteran’s health. All VA examiners have noted that the Veteran’s disability causes little to no occupational impairment. Simply put, considerable impairment of health is not suggested by any competent evidence. The Board has considered whether a higher rating could be awarded using Diagnostic Code 7307, which is for rating hypertrophic gastritis. 38 C.F.R. § 4.114. A 30 percent rating under that diagnostic code requires chronic gastritis with multiple small eroded or ulcerated areas as well as symptoms. A 60 percent rating requires chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. A June 2015 treatment note indicates that endoscope of the stomach revealed no ulcers, masses, or erosions. As the evidence does not show eroded or ulcerated areas or severe hemorrhage associated with the disability, a higher rating is not warranted under Diagnostic Code 7307. The Board has also considered whether the rating under Diagnostic Code 7346 should be elevated. See 38 C.F.R. § 4.114; see also 38 C.F.R. § 4.1 (The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). As described above, the evidence suggests little to no occupational impact due to this disability. As such, elevation is not warranted. As the disability picture does not more nearly approximate the schedular criteria for a 30 percent rating, the claim for a higher rating is denied. 4. TDIU before March 1, 2017 The Veteran has been in receipt of a 100 percent for a mental health disability since March 1, 2017, and has been awarded special monthly compensation since that date as well. Thus, the issue of entitlement to TDIU since that date is moot. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has met the requirements for schedular TDIU consideration since he was originally awarded service connection effective September 26, 2012. The following service-connected disabilities are for consideration in this decision: anxiety to include depression, lumbar spine degenerative disc disease, right shoulder anterior labrum tear, bronchial asthma, cervical strain and degenerative arthritis of the cervical spine (since September 14, 2015), right ankle ligament tear, hypothyroidism, GERD, tinnitus (since March 23, 2016), left knee scar, left knee degenerative changes, and right hand middle finger sprain. Military personnel records reflect the Veteran’s military occupational specialty was that of infantry. On his TDIU applications, he reported receiving a college degree, previous work experience as a police officer, and last working full time in the military. The Board finds that the evidence supports granting TDIU effective September 26, 2012. Initially, it is noted that the Social Security Administration (SSA) found the Veteran disabled beginning in August 2010 with the primary disability listed as affective/mood disorders and the secondary disability listed as disorders of the back. SSA uses different standards for determining disability and findings from SSA are not binding on the Board; however, as the Veteran is service-connected for anxiety and depression, as well as a back disability, it is noted that the SSA findings lend support to the Veteran’s claim before VA. The Veteran’s asthma, cervical spine disability, and GERD are discussed above. The Veteran also has various musculoskeletal disabilities, including a shoulder disability affecting his dominant arm. These would limit the Veteran’s ability to perform physical tasks. Notably, a July 2014 examiner found the Veteran’s lumbar spine disability limited his ability to drive, sit in a sedentary job, or stand for more than 20 minutes. The right shoulder has been noted by VA examiners to affect his ability to perform overhead activities. As to his anxiety disorder, when the Veteran was evaluated for SSA disability benefits in January 2012, the Veteran noted he had sleep difficulties and loss of energy and spent his day lying around his house watching television. He related poorly to family and friends because of constant irritability. A second evaluation for SSA in March 2013 noted the Veteran also had a loss of concentration. Testing demonstrated short-term memory loss. The Veteran performed activities of daily living only with motivation from others. He had a poor tolerance for frustration. The Veteran needed help managing his finances and could only prepare simple meals such as with a microwave. The examiner noted the Veteran’s mental health symptoms diminished the Veteran’s ability to carry out sustained or persistent work. He also noted the Veteran’s history of pain and the Veteran constantly changed positions during the evaluation. In a September 2012 pain assessment, the Veteran was noted needing help to bathe and dress himself because he could not bend over. It also meant he could not sit for long. This meant he could not drive for long and had problems completing tasks and understanding and following directions. He needed to be reminded as to when he should take medication. The Board finds that the combined physical and mental limitations would preclude the Veteran from securing and maintaining substantially gainful employment. The Veteran certainly could not function as an infantryman or police officer with limitation on sitting, driving, standing and walking combined with problems with concentration, memory, and motivation. His numerous service-connected physical disabilities would prevent any form of physical labor. While the Veteran has a college education, he is not suited for sedentary employment as evaluators have indicated he would have trouble with prolonged sitting and, again, with concentration, memory and motivation. The evidence indicates that the service-connected disabilities have been of sufficient severity to render the Veteran practically unemployable since he separated from the Army on September 25, 2012. Given the above, TDIU is awarded from September 26, 2012 through February 28, 2017. REASONS FOR REMAND Ratings for lumbar spine, right ankle, right hand middle finger, and left knee disabilities. In July 2015, the Veteran filed a notice of disagreement to an August 2014 rating decision denying higher ratings for the above issues. According to VA’s Veterans Appeals Control and Locator System (VACOLS), a statement of the case was issued in November 2015 regarding these issues, but the Veteran did not file a timely substantive appeal. However, upon review the Board cannot find a copy of the November 2015 statement of the case in the Veteran’s file. In the January 2020 remand, the Board referred the matter back to the RO to associate the November 2015 statement of the case with the Veteran’s file or take additional action regarding the July 2015 notice of disagreement. To date, if a November 2015 statement of the case was prepared and sent to the Veteran, it still has not been associated with the file. Therefore, based on the record before it, the Board finds a statement of the case has not been prepared and sent to the Veteran regarding the August 2014 rating decision and the July 2015 notice of disagreement. As such, these claims must be remanded so that a statement of the case can be issued. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Furnish the Veteran and his representative with a statement of the case on the issues pertaining to the ratings assigned for lumbar spine, right ankle, right middle finger, and left knee disabilities based on the July 2015 notice of disagreement. If a November 2015 statement of the case was prepared with proper notice to the Veteran and is added to the file, there is no need for another statement of the case or supplemental statement of the case to be issued. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell P. Veldenz, 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.