Citation Nr: 21014034 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-38 744 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for gastroesophageal reflex disorder (GERD) is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to an increased rating for lumbar spine degenerative arthritis, rated as 20 percent disabling prior to October 22, 2020 and 40 percent thereafter, is remanded. Entitlement to service connection for hypertrophic gastritis is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a rating in excess of 10 percent for right knee meniscotomy is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to a rating in excess of 30 percent for right knee degenerative joint disease with patellofemoral dysfunction is remanded. Entitlement to a rating in excess of 10 percent for psoriasiform dermatitis is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s GERD has at times been manifested by infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances and nausea; there is no indication that it resulted in substernal arm or shoulder pain or a considerable impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran’s GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.20, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1982 to June 1982 and from February 2003 to August 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo and San Juan, Commonwealth of Puerto Rico. This case was previously before the Board in September 2018 and January 2020, at which times the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. In a December 2020 rating decision, the Veteran was granted entitlement to a rating of 40 percent for lumbar spine degenerative arthritis, effective October 22, 2020. That was not a complete grant of the benefits sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating Claim 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. 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. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GERD The Veteran asserts that he is entitled to a higher rating for his GERD, as his symptoms are worse than those contemplated by the currently assigned rating. This appeal stems from a claim dated in April 2018. During the period on appeal, the Veteran’s GERD is rated 10 percent under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. There is no specific diagnostic code for GERD. It is therefore rated under the diagnostic code for a hiatal hernia, based on similarity of symptoms. In this regard, 38 C.F.R. § 4.20 allows for analogous ratings of an “unlisted condition” under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptoms are closely analogous. However, it further provides that “[c]onjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.” Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 10 percent rating is warranted if the Veteran experiences two or more of the symptoms for the 30 percent rating of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis (vomiting of blood) or melena (black, tarry feces associated with gastrointestinal hemorrhage) with moderate anemia (a decreased number of red blood cells); or other symptom combinations productive of severe impairment of health. At an April 2012 VA examination, the Veteran reported that he experienced occasional sour taste in his mouth, as well as epigastric discomfort and hoarseness. He indicated that he regularly used over-the-counter medication for treatment of GERD symptoms. The Veteran reported that he experienced reflux symptoms approximately one to two times per week. On examination, there was no evidence of anemia, weight loss, nausea, vomiting, hematemesis, melena, or esophagus spasms. The examiner reported that the Veteran’s GERD was productive of infrequent episodes of epigastric distress as well as reflux. The examiner reported that the Veteran’s GERD did not impact his ability to work. At an October 2016 VA examination, the Veteran reported that he used over-the-counter medication to treat GERD symptoms. He reported experiencing reflux that sometimes resulted in hoarseness, and occasionally awakened him from sleep. The examiner reported that the Veteran’s GERD was productive of infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances that occurred approximately four or more times per year that are less than a day in duration. The examiner reported that the Veteran’s GERD did not impact his ability to work. At an April 2017 VA examination, the Veteran reported that he experienced sour tastes, epigastric discomfort, hoarseness, and epigastric pain. The examiner noted that continuous medication was required to treat the Veteran’s GERD. The examiner reported that the Veteran’s GERD was productive of infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and sleep disturbances that occurred approximately four or more times per year that were of less than a day in duration. The examiner reported that the Veteran’s GERD did not impact his ability to work. At an April 2020 VA examination, the examiner noted that continuous medication was required to treat the Veteran’s GERD. The examiner reported that the Veteran’s GERD was productive of infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances and nausea that occurred approximately four or more times per year that were of less than a day in duration. The examiner reported that the Veteran’s GERD did not impact his ability to work. A review of the Veteran’s VA Medical Center treatment records does not show that the Veteran has complained of symptoms not reflected in the above-mentioned examination reports. Based on a review of the evidence, lay and medical, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent. Here, the Veteran experienced infrequent episodes of epigastric distress, pyrosis, and pain. He also reported symptoms despite medication and he had consistently reported sleep disturbances. As the Veteran has experienced at least two of the symptoms of the 30 percent criteria but of less severity (i.e., not productive of considerable impairment of health), the Board concludes the Veteran’s symptoms are most productive of the criteria contemplated by a 10 percent rating. In this regard, the Veteran has not reported vomiting nor does the evidence reflect any material weight loss or anemia. Moreover, the record does not reflect that the Veteran’s symptoms were productive of considerable impairment to his health. In this regard, the April 2012, October 2016, April 2017 and April 2020 VA examiners noted that the Veteran’s GERD did not result in impairment with daily activities. Consequently, the criteria for the next higher 30 percent rating are not met or more closely approximated and a rating in excess of 10 percent for GERD is not warranted. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), but the Veteran could not receive a higher rating for his GERD based on the evidence as described above. See 38 C.F.R. § 4.118. In reaching its conclusions, the Board acknowledges the Veteran’s belief that his GERD is more severe than as reflected by the currently assigned disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his GERD. The Board has addressed stage ratings under Hart v. Mansfield, supra and confirms that the Veteran’s symptomatology is consistent with the staged rating on appeal period. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran’s current employment status is unknown. However, the Veteran has not demonstrated an inability to obtain and maintain substantially gainful employment due to his GERD symptoms. Thus, a TDIU under Rice has not been raised. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 10 percent. As such, entitlement to a rating in excess of 10 percent for GERD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND The Board finds that additional information is required before the remaining claims on appeal are decided. Acquired Psychiatric Disorder, Diabetes Mellitus and Lumbar Spine Degenerative Arthritis The Board finds that there has not been substantial compliance with the Board’s previous remand directives. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding that a remand by the Board confers the right to compliance with remand orders). In the January 2020 remand, the Board directed the AOJ (Agency of Original Jurisdiction) to obtain a medical opinion for the Veteran’s claimed acquired psychiatric disorder, diabetes mellitus and lumbar spine degenerative arthritis. Such opinions were obtained in December 2020, November 2020 and October 2020, respectively, after the issuance of the May 2020 supplemental statement of the case (SSOC). In a January 2021 letter, the Board inquired as to whether the Veteran would waive initial AOJ consideration of the evidence received after the issuance of the May 2020 SSOC. The Veteran did not respond to this letter and has not waived initial AOJ consideration of this evidence, which is non-duplicative and highly relevant to his claims. Although the AOJ issued a January 2021 SSOC, this is insufficient as the appeals were certified to the Board’s jurisdiction in June 2020. Therefore, a remand is required to allow the AOJ to consider the evidence of the October 2020, November 2020 and December 2020 VA examination reports in a new SSOC. See 38 C.F.R. § 20.1304(c). Gastritis In a November 2020 VA opinion, the examiner opined that the Veteran’s hypertrophic gastritis was not related to service. In reaching this conclusion, the examiner commented that the Veteran’s service treatment records and post-service treatment records were silent for complaints or treatment of gastritis. However, the Board notes that the August 2019 VA examiner noted that the Veteran had a diagnosis of hypertrophic gastritis. Therefore, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran’s hypertrophic gastritis. Stegall v. West, 11 Vet. App. 268, 271 (1998). Erectile Dysfunction The Veteran asserts that his diagnosed erectile dysfunction is related to active service, to include as secondary to service-connected disabilities. Specifically, in his April 2018 VA Form 21-526b (Veteran Supplemental Claim), the Veteran reported that he was seeking service connection for erectile dysfunction as secondary to his service-connected lumbar degenerative arthritis of the pine. In a June 2018 VA medical opinion report, the examiner opined that the Veteran’s erectile dysfunction was not related to his service-connected lumbar spine disability. In support of this conclusion, the examiner commented that a September 2004 lumbar spine magnetic resonance imaging (MRI) scan showed that interspace between L5-S1 was unremarkable. The Board finds this opinion inadequate to adjudicate the claim. In this regard, the examiner’s rationale is insufficient and does not explain the significance between the September 2004 MRI scan findings and the opinion provided. At a November 2020 VA examination, the examiner opined that the Veteran’s erectile dysfunction was caused by his diabetes mellitus. No opinion related to an association between his lumbar spine disability and erective dysfunction was provided. Therefore, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran’s erectile dysfunction. Stegall v. West, supra. Right knee Meniscectomy, Instability, and Degenerative Joint Disease with Patellofemoral Dysfunction In June 2018, the Veteran was afforded a VA examination to ascertain the severity of his right knee disabilities. The Veteran reported that he experienced flare-ups during those examinations. A review of those examination reports shows that the findings reported are not in compliance with the requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, in determining the functional limitations experienced following repeated use and during flare-ups with regard to range of motion, the examiner did not provide an opinion. Therefore, the Veteran should be afforded new VA examinations to determine the currently level of severity of all impairment resulting from his right knee disabilities. Psoriasiform Dermatitis The Veteran was most recently afforded a VA skin examination in July 2011. The Board finds that it is unable to decide the claim based on the findings contained within the July 2011 VA examination report. In this regard, the examination was conducted almost a decade ago, and there is limited information with regard to the current level of severity of the symptomatology associated with the Veteran’s dermatitis. Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his psoriasiform dermatitis. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of the Veteran’s hypertrophic gastritis. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s diagnosed hypertrophic gastritis had its onset during his active service or is otherwise etiologically related to such service? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of his erectile dysfunction. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. Based on the review of the record, the examiner must provide an opinion as to the following: (A) Is at least as likely as not (50 percent or better probability) that the Veteran’s erectile dysfunction had its onset during his active service, or is otherwise etiologically related to such service? (B) Is at least as likely as not (50 percent or better probability) that the Veteran’s erectile dysfunction was caused OR aggravated by his service-connected lumbar spine degenerative arthritis? The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 4. After outstanding records have been received, schedule the Veteran for a VA examination by an examiner with appropriate expertise to address the current level of severity of all impairment resulting from his right knee. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. 6. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his psoriasiform dermatitis in accordance with VA rating criteria. The claims file must be made available to, and reviewed by the examiner. The need for further in-person examination is left to the discretion of the examiner. The examiner must identify each topical medication prescribed to treat the psoriasiform dermatitis during the appellate period. For each such topical medication, the examiner must provide an opinion as to whether such medication constituted systemic therapy like a corticosteroid or other immunosuppressive drug. For topical treatments, the examiner must state (a) whether the treatment operates by affecting the body as a whole to treat psoriasiform dermatitis and (b) whether the treatment is like a corticosteroid or other immunosuppressive drug. If the treatment is clearly systemic, the examiner must only address whether the treatment is like a corticosteroid or other immunosuppressive drug. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. (Continued on the next page)   7. After the above development, and any additionally indicated development (to include consideration of whether additional examinations are warranted), has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher O'Donnell, 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.