Citation Nr: 1749068	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-31 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an initial compensable rating for degenerative disc disease (DDD) at T12 to L3.

2.  Entitlement to an initial compensable rating for gastrointestinal esophageal reflux disease (GERD).

 
REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Laura E. Collins, Counsel

INTRODUCTION

The Veteran served on active duty from August 2003 to August 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

In November 2013 and April 2017 the Board remanded the case for further development.


FINDINGS OF FACT

1.  The Veteran has not shown good cause for failing to report to the June 2017 VA examinations.

2.  DDD at T12 to L3 is manifested by painful motion with forward flexion greater than 60 degrees and combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour.

3.  Resolving reasonable doubt in favor of the Veteran, GERD is characterized by pyrosis and regurgitation of less severity than the rating criteria for a 30 percent evaluation.


CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent disability rating, and no higher, for DDD at T12 to L3 are met.  38 U.S.C. §§ 1155, 5107(b) (2016); 38 C.F.R. § 3.102, 3.655(b), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2016).

2.  The criteria for an initial 10 percent disability rating, and no higher, for GERD are met.  38 U.S.C. §§ 1154(a), 1155, 5107(b) (2016); 38 C.F.R. § 3.102, 3.655(b), 4.3, 4.7, 4.114, DC 7346 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Assist

In November 2013, the Board remanded these issues for VA examinations because the Veteran's representative explicitly alleged that the disabilities had worsened since the most recent examination in January 2009.

In an April 2017 remand, the Board found there had not been substantial compliance with the directive: "[A]lthough the VA system appears to indicate that the Veteran was scheduled to appear for these examinations in May 2016, there is no indication in the claims file that he was ever notified [of] the date of the examinations."  The Board thus remanded again for examinations, cautioning the Veteran that he had an obligation to report for the examinations.

The record contains an "Exam Request" for VA orthopedic and gastrointestinal examinations on May 15, 2017.  In the Legacy Content Manager of the electronic claims file, a June 26, 2017 QTC Invoice states that the Veteran was a "Complete No Show" for an appointment on that date.  The document appears to have been attached to a July 14, 2017 e-mail from QTC to VA that reads, "Here is the no show letter you requested."  A supplemental statement of the case (SSOC) readjudicating the claim was issued in July 2017 and sent to the Veteran and his representative.  In its "Evidence" section, the SSOC listed: "Failure to Report Notice, received July 14, 2017."  In the "Reasons and Bases" section, the SSOC found that the Veteran had not provided good cause for his failure to report for the examinations and therefore the readjudication was based on the information of record.

Subsequent to the July 2017 SSOC, the only submissions from the Veteran or his representative were a due process waiver acknowledging receipt of the SSOC and asking that the case be immediately forwarded to the Board (received in July 2017) and an Informal Hearing Presentation (received in October 2017).  Neither the Veteran nor his representative addressed the failure to report for the examinations.

While review of the file does not reveal a copy of a letter notifying the Veteran of these scheduled examinations, neither the Veteran nor his representative has asserted that the failure to appear was due to a lack of advance notice.  Neither has indicated that the Veteran failed to receive notice of the examinations, provided any explanation for the Veteran's failure to appear, or requested that the Veteran be scheduled for another examination.  Accordingly, absent any other evidence to the contrary, the Board finds that the Veteran received sufficient notification in advance of the VA examination.  In this regard, the Board is relying upon the presumption of administrative regularity in finding that the Veteran was properly notified of the scheduled VA examination.

The Board acknowledges the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decision in Kyhn v. Shinseki, which struck down the United States Court of Appeals for Veterans Claims' (Court's) reliance on the presumption of regularity in a case in which notification of an upcoming VA examination was not explicitly of record.  See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010)).  Notably, the appellant in Kyhn expressly argued that he had been unable to attend the scheduled VA examination because proper advance notice had not been provided.  The Federal Circuit then ruled that, in such an instance, VA could not rely on evidence outside the record that was before the agency - specifically, the post-hoc affidavits of employees - in establishing that the agency "had a regular practice of providing [advance] notice of VA examinations."  Kyhn, 716 F.3d at 577.

In this case, in contrast with the facts in Kyhn, neither the Veteran nor the representative has argued that there was improper notice in advance of the scheduled VA examinations.  It thus follows that this case more closely resembles the facts in Baxter v. Principi, 17 Vet. App. 407 (2004), wherein an appellant "assiduously avoided" raising the question of whether VA had properly discharged its official notification duties.  Id. at 410.  Consequently, the Court in Baxter held "that the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question."  Id. at 411.  The holding in Baxter was cited approvingly by the Court when it revisited the Kyhn case at the direction of the Federal Circuit.  See Kyhn v. Shinseki, 26 Vet. App. 371, 374 (2013) (noting that the "Secretary correctly states that Baxter 'holds that the Board need not examine whether the presumption of regularity has been rebutted unless and until an appellant, at a minimum, alleges that he did not receive the document in question'").  Thus, applying the holding of Baxter to the facts presented in the instant case, the Board finds no need to consider whether the presumption of regularity has been rebutted, because neither the Veteran nor the representative has argued that there was a lack of notice, or insufficient notice, of the VA hypertension examination.

The Board, in its prior remands, found examinations necessary in order to determine the current severity of the Veteran's service-connected GERD and DDD at T12 to L3.  As the Veteran has not presented good cause for failing to report, pursuant to 38 C.F.R. § 3.655(b), these claims shall be rated based on the evidence of record.

II.  Analysis

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Separate DCs identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  When "reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant."  38 C.F.R. § 4.3.

A.  DDD at T12 to L3

The Veteran's DDD is currently rated noncompensably disabling under 38 C.F.R. § 4.71a, DC 5243.  The Veteran contends that throughout the appeal period his low back symptoms have been severe enough to warrant a rating of at least 10 percent.  The Board agrees and, for the reasons set forth below, grants a 10 percent disability rating under DC 5237 for the entire period.

Disabilities of the spine are rated under DCs 5235 through 5243.  38 C.F.R. § 4.71a.  The assignment of a particular DC is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in DC by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Service connection for a disability is not severed simply because the situs of the disability, or the DC associated with it, is corrected to determine more accurately the benefit to which the veteran is entitled.  Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

Here, the Board finds that it is more appropriate to rate the Veteran's DDD under DC 5237 for lumbosacral strain (with or without symptoms such as pain, stiffness, or aching in the area of the spine), rather than DC 5243 for intervertebral disc syndrome (IVDS).  This is because the January 2009 VA examination found the Veteran did not have IVDS and because the symptoms compensated under DC 5243 (incapacitating episodes having a total duration of at least one week during the past 12 months) do not reflect the type of symptoms experienced by the Veteran.  The rating criteria of DC 5237 (i.e., limitation of motion, spasm) more accurately reflect the Veteran's disability picture.  The Board therefore reassigns the disability rating from DC 5243 to DC 5237.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  "Although pain may cause a functional loss, pain itself does not constitute functional loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original).  Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion.  38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991).  The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

At the outset, the Board finds that the medical and lay evidence reflect that the Veteran's DDD at T12 to L3 is characterized by painful motion and spasm during flare-ups that require him to rest and restrict his activities.  Specifically, the Veteran reports flare-ups every one to two months that last for one to two days with moderate pain and stiffness.  Flare-ups are precipitated by strenuous activity or prolonged walking and standing.  During flare-ups he stays in bed and takes NSAIDs.  Based on painful motion during flare-ups, he is entitled to the minimum compensable rating of 10 percent for the joint under 38 C.F.R. §§ 4.59.

A higher rating of 20 percent is only available for forward flexion of the thoracolumbar spine limited to less than 60 degrees but more than 30 degrees, or where the combined ROM of the thoracolumbar spine is no greater than 120 degrees, or muscle spasm and guarding are severe enough to result in abnormal gait or abnormal spinal contour.  38 C.F.R. § 4.71a, DC 5237.  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees.  Id. at Note (2).

The only measurement of the Veteran's thoracolumbar ROM is in the January 2009 VA examination report.  He was able to flex forward to 100 degrees with pain at 100 degrees; extension was full at 30 degrees with pain at 30 degrees; lateral flexion was full at 30 degrees bilaterally with pain at 30 degrees; lateral rotation was full bilaterally to 30 degrees without pain.  There was no additional limitation of motion after repetitive motion.  This yields a combined ROM of 250 degrees.  The examiner did not find, and the Veteran does not contend, that there is ankylosis or associated objective neurologic abnormality.

The record contains no other measurement or description of limited ROM of the thoracolumbar spine.  In fact, January 2009 and January 2010 VA treatment records show full ROM even during flare-ups with positive spasm.  Thus, there is no evidence of limitation of motion sufficient to warrant a higher rating of 20 percent.  Further, while there is positive evidence of muscle spasm, there is neither medical nor lay evidence that it is severe enough to result in abnormal gait or abnormal spinal contour.

The Board herein grants the minimum compensable rating for functional loss due to painful motion that is otherwise not compensable under the rating criteria.  The Board finds that the functional loss does not meet the requirements for a 20 percent disability rating.  Mitchell, DeLuca, and §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating.  Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a).

A 10 percent rating, but no higher, is granted under DC 5237 for the entire appeal period.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  There are no additional expressly or reasonably raised issues presented on the record.

B.  GERD

The Veteran's GERD is currently rated noncompensably disabling under 38 C.F.R. § 4.114, DC 7346.  The Veteran contends that throughout the appeal period he is entitled to at least a 10 percent rating because he is prescribed daily medication for the disability.  See April 2009 notice of disagreement, October 2017 informal hearing presentation.  For the reasons set forth below, the Board finds a 10 percent rating is warranted.

The only GERD symptoms reported in lay and medical evidence are heartburn and regurgitation (reflux).  See January 2009 VA examination report.  The Veteran was prescribed daily medication and the VA examiner noted improvement on this course of treatment.  The Veteran denied any nausea, vomiting, constipation, indigestion, hernia, mass, swelling, jaundice, or abdominal pain.

A December 2008 upper gastrointestinal film with barium was normal with no evidence of reflux.  In a January 2009 VA treatment record, the Veteran denied nausea, constipation, and diarrhea.  In an August 2009 VA treatment record he denied these again, as well as vomiting.  In a September 2009 VA treatment record he reported no gastrointestinal symptoms and specifically denied these four symptoms again.

As there is no specific DC for GERD, the Veteran has been rated by analogy under DC 7346 (hiatal hernia).  This is the only DC in the digestive system schedule of ratings that addresses pyrosis (heartburn) and regurgitation.  Thus, the Board finds DC 7346 most nearly approximates the Veteran's symptoms.

Under DC 7346, a 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 10 percent rating is warranted where there are "two or more of the symptoms for the 30 percent evaluation, but of less severity."

The evidence shows pyrosis and regurgitation, two of the symptoms listed in the 30 percent rating criteria.  In the absence of evidence of dysphagia, substernal arm or shoulder pain, and considerable impairment of health, the Board finds a 30 percent rating is not warranted.

Pyrosis and regurgitation are described as well managed by medication and improved with medication.  After January 2009, the Veteran affirmatively denied gastrointestinal symptoms on multiple occasions.  Thus, the Board finds that these two symptoms are of less severity than that described in the 30 percent rating criteria.

While it appears that the Veteran's GERD has been asymptomatic for at least part of the appeal period, the Board observes that DC 7346 is silent as to the effects of medication.  Because the Veteran took daily medication for GERD, the Board resolves reasonable doubt in his favor and concludes that without such treatment his disability would be symptomatic and a 10 percent rating is warranted for the entire appeal period.  Jones v. Shinseki, 26 Vet. App. 56 (2012).

A 10 percent rating, but no higher, is granted under DC 7346 for the entire appeal period.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert.  There are no additional expressly or reasonably raised issues presented on the record.


ORDER

An initial 10 percent disability rating, but no higher, is granted for DDD at T12 to L3 under DC 5237, subject to the law and regulations governing the payment of VA monetary benefits.

Resolving reasonable doubt in favor of the Veteran, an initial 10 percent disability rating, but no higher, is granted for GERD under DC 7346, subject to the law and regulations governing the payment of VA monetary benefits.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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