Citation Nr: 21041790 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 11-02 072 DATE: July 10, 2021 ORDER Entitlement to an increased rating of 20 percent but no higher, for a back disability, beginning July 28, 2008 is granted. Entitlement to an increased rating of 30 percent but no higher, for gastroesophageal reflux disease (GERD), beginning September 26, 2011 is granted. FINDINGS OF FACT 1. Beginning July 28, 2008, the Veteran's back disability was manifested by pain and limitation of motion equivalent to forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees. 2. Affording the Veteran, the benefit of the doubt, since September 26, 2011, his GERD is manifested by persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, and shoulder pain. CONCLUSIONS OF LAW 1. Beginning July 28, 2008, the criteria for a 20 percent disability rating but no higher, for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. 2. Beginning September 26, 2011, the criteria for a disability rating of 30 percent, but no higher, for GERD are met. 38U.S.C. §§1155, 5107; 38C.F.R. §§4.114, Diagnostic Code (DCs) 7346-7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1984 to July 1984 and in the United States Army from July 1986 to March 1992, and from February 2003 to September 2004. In a March 2020 decision, the Board denied the increased rating claims for GERD and back disabilities. The Veteran subsequently appealed the portion of that decision denying the increased ratings for GERD and a back disability prior to January 7, 2016, to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred when it failed to address the functional loss associated with Appellant's low back disability prior to January 7, 2016; and when it failed to provide an adequate statement of reasons or bases for its denial of an increased evaluation for GERD prior to January 7, 2016. Accordingly, the matter has been vacated and remanded to the Board for actions consistent with the Court's JMPR. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA must consider whether to 'stage" the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to an increased rating of 20 percent for a back disability, beginning July 28, 2008 The Veteran's back disability is rated at 10 percent from September 4, 2004 to January 7, 2016 and a 20 percent rating thereafter, for his back disability. The Veteran contends that he is entitled to a rating greater than 10 percent, prior to January 7, 2016 for his back disability. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). However, DC 5237, under which the Veteran's back disability is rated was unchanged by the amendments. The evaluation criteria are meant to encompass and consider the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455. The Veteran filed an informal increased rating claim for his back disability on July 28, 2008 stating that his symptoms "seems to be getting worse". The Veteran was afforded a VA examination in September 2008. The Veteran stated that his low back stays sore constantly and that he wears a back brace couple of times a week. He reported that his low back has increased pain when doing a lot of bending and he cannot do some of the tasks due to having to bend, and that he also cannot do heavy lifting. The Veteran also reported that his low back caused him to miss 9 days of work due to pain. On examination, no muscle spasms, guarding, scoliosis, reversed lordosis, or kyphosis were noted. The range of motion for flexion was 90 degrees. The examiner noted that pain begins at 90 degrees and that there was no additional loss of motion on repetitive use of the joint. See September 2008 VA Examination. The Veteran was afforded a VA examination in September 2010. No thoracolumbar spine ankylosis, localized tenderness, guarding or muscle spasm were noted upon examination. Flexion was noted as 110 degrees with no additional limitation of motion on repetitive use. See September 2010 VA Examination. At the January 2016 VA examination, flexion was to 90 degrees. There was pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. It was noted that the Veteran has guarding or muscle spasm of the thoracolumbar spine. It was noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time. The examiner stated that difficulty with lifting, prolonged standing or sitting will impact the Veteran's ability to work. See January 2016 C&P Examination. During the June 2015 Board hearing, the Veteran testified that he gets spasms a couple of times a week and that he wears a TENS machine that was issued at Salisbury VAMC. The Veteran also stated that when his back "spasm up", it's hard to turn his head, and that certain movements throws his back out. See June 2015 Hearing Transcript. On a March 2013 VA Form 9, the Veteran stated that he continually takes pain medications and utilizes a TENS machine to alleviate his back symptoms. He noted that at times, his back gives out that he cannot straighten up or walk. The VA treatment records indicates that the Veteran has continued treatment for back pain and spasm with muscle relaxers and a TENS unit. See CAPRI. Based on the Veteran's limitation of motion and reported functional impairments at his September 2008 VA examination, the Board finds that when affording the Veteran, the benefit of the doubt, a 20 percent rating is warranted for the Veteran's service-connected back disability. The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237. While this limitation of motion is not demonstrated on the September 2008 VA examination, the examiner notably indicated that the Veteran reported that his back has increased pain when doing a lot of bending; that he cannot do some of the tasks due to having to bend; and that he also cannot do heavy lifting. The examiner also noted that the Veteran's back disability caused increased absenteeism as the Veteran had lost 9 days of work due to back pain. Additionally, the Veteran reiterated these statements at the June 2015 Board hearing when he reported that he has constant back pain especially when walking or standing for prolonged periods and that he was unable to extend his back, bend or fully turn his body. Therefore, in consideration of the pain found on the September 2008 VA examination, the Board finds that a 20 percent rating is warranted for the entire period on appeal. The Board finds that the preponderance of the evidence is against a rating greater than 20 percent at any time relevant to the decision on appeal as the Veteran has not met the criteria under the general rating code. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted on the VA examination reports that the Veteran exhibited pain on lumbar spine motion and had functional loss due to pain, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Since flexion has not been limited to 30 degrees or less even after repetitive use; and the Veteran's spine is not ankylosed since he has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for a rating in excess of a 20 percent evaluation have not been met. Thus, the Board finds that a 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences because of use of his back. Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. However, the medical evidence, to include the January 2016 VA examination, indicated that the Veteran does not have IVDS. Therefore, the provisions for evaluating intervertebral disc syndrome are not for application. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. Notably, the January 2016 VA examiner noted that the Veteran did not have any radicular pain in his bilateral lower extremities. However, the Board notes that the Veteran is in receipt of a 10 percent disability rating for radiculopathy of the right and left extremities, secondary to the service-connected back disability, effective July 12, 2017. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent rating for a back disability as of July 28, 2008 (the date the Veteran's filed his informal claim for an increased rating). 2. Entitlement to an increased rating of 30 percent for gastroesophageal reflux disease (GERD), beginning September 26, 2011. By way of history, the Veteran has been in receipt of a non-compensable rating for his GERD from September 4, 2004 to January 7, 2016. The Veteran filed a claim for increased rating for his GERD on September 26, 2011. A June 2016 rating decision increased the Veteran's disability rating from non-compensable to 30 percent effective January 1, 2016. The Veteran has contended that his GERD warrants a compensable rating prior to January 7, 2016. The Veteran's GERD is rated under 38C.F.R. §4.114, DCs 7307-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Also relevant is the note at the beginning of the rating schedule for the digestive system: 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. The Board finds the Veteran's gastrointestinal disability is most appropriately evaluated under Diagnostic Code 7346, as the rating criteria fully describe the symptoms advanced by the Veteran. Under DC 7346, a 10 percent evaluation is warranted when there is at least one recurring attack of typical severe abdominal pain in the past year. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Note (1) to DC 7346 indicates that abdominal pain in this condition must be confirmed as resulting from pancreatitis by appropriate laboratory and clinical studies. In September 2011, the Veteran stated that he was still having bloody stools and that his knees and shoulders were getting worse. See September 2011 VA 21-4138 Statement In Support of Claim At the September 2012 VA examination, it was noted that the Veteran has abdominal pains at least monthly, nausea four or more times per year, and melena at least twice a year. The Veteran stated that he misses four or five days of work due to GERD symptoms and related abdominal pain. See September 2012. At the January 2016 VA examination, it was noted that the Veteran's symptoms were better and that he could have some eat some greasy food but could not have spicy foods. The Veteran's symptoms included sweats, heartburn, belching, reflux with abdominal pain. He stated that he may have been having some dark stools and that he uses Omeprazole for treatment. It was noted that he has infrequent episodes of epigastric distress, pyrosis, reflux, regurgitation, and substernal pain. An upper endoscopy showed erosive esophagitis. The examiner noted that GERD did not impact the Veteran's ability to work. See January 2016 C&P Examination. During the June 2015 Board hearing, the Veteran reported bleeding with bowel movements, ulcers, acid reflux, pain at the bottom of his stomach, shoulder pain, and regurgitation once a month. See June 2015 Hearing Transcript. Upon review of the above evidence, the Board finds that a disability rating of 30 percent, but no higher, is warranted for the Veteran's GERD as of September 26, 2011. The Board notes that the Veteran takes medication to ameliorate the severity of his gastrointestinal disability. Such ameliorative effects cannot be directly taken into account when considering which disability rating to assign because the applicable diagnostic codes do not contemplate the effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As there is competent evidence of recurrent epigastric distress, pyrosis, and reflux, regurgitation and shoulder pain, the evidence is at least evenly balanced as to whether the Veteran's symptoms more nearly approximate the criteria for a 30 percent rating under DC 7346. A rating higher than 30 percent under DC 7346 is not warranted. The evidence does not suggest that, even without medication, the Veteran suffers from symptoms of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Therefore, the Veteran's GERD warrants a rating of 30 percent, but no higher beginning September 26, 2011 (the date of his increased rating claim). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.