Citation Nr: 0003606 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-18 626 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine, from the initial grant of service connection. 2. Entitlement to a compensable evaluation for service- connected hiatal hernia, from the initial grant of service connection. 3. Entitlement to a compensable evaluation for service- connected residuals of a fracture of the right ankle, from the initial grant of service connection. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from September 1982 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 decision by the RO which granted service connection for the disabilities now at issue on appeal. A personal hearing was held at the RO in October 1997. (The issues of higher ratings for the veteran's low back and right ankle disabilities are the subjects of the REMAND portion of this document.) FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal of the issue for a compensable rating for service-connected hiatal hernia has been obtained by the RO. 2. Since service connection was granted, the veteran's hiatal hernia has been manifested by dysphagia, pyrosis, and chest pain, without regurgitation, weight loss, hematemesis, melena, or anemia. 3. Since service connection was granted, the medical evidence does not show that the veteran's hiatal hernia is productive of considerable impairment of health. CONCLUSION OF LAW The criteria for a rating of 10 percent for service-connected hiatal hernia from the initial grant of service connection have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.114, Part 4, Diagnostic Code 7346 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background When examined by VA in March 1997, the veteran was noted to be well nourished and well developed. He reported problems with reflux esophagitis and occasional chest discomfort when raising his arms above his head. The veteran reported that he did not get any relief with Mylanta and Maalox. The examiner noted that the hiatal hernia was confirmed by an upper gastrointestinal (UGI) series in service. He concluded that it was very likely that the veteran's current symptoms were caused by his hiatal hernia. By rating action in April 1997, service connection was established for hiatal hernia based on diagnostic studies showing a hiatal hernia in service and current findings of residual symptoms on VA examination shortly after discharge from service. The RO assigned a noncompensable evaluation for hiatal hernia, effective from January 18, 1997, the day following the veteran's discharge from service. In his substantive appeal dated in May 1997, the veteran reported that his hiatal hernia was manifested by pain, discomfort and excess gas. At a personal hearing at the RO in October 1997, the veteran testified that he had problems swallowing food and cold liquids, and that he had to chew his food very slowly and completely. The veteran testified that he had heartburn and chest pain when lying down after eating. He denied any regurgitation or vomiting, and reported that he did not take any medications for his condition. A VA medical report in 1997 indicated that the veteran was seen for a refill of his medications for low back pain. He was described as well developed and well nourished. The report noted that the veteran was working in construction at that time. The veteran did not report any specific problems with his hiatal hernia but was given a refill of Cimetidine, and was told to return in six months. A health risk management form dated in November 1997 shows that the veteran's current problems were degenerative disk disease of the lumbar spine and nicotine dependence. Weights between February and November 1997 were no lower than 245. Height was 6 feet 5 inches. Increased Ratings in General As noted above, service connection for hiatal hernia was established by rating action in April 1997, and a noncompensable evaluation was assigned, effective from January 18, 1997, the day following the veteran's discharge from service. The veteran disagreed with the evaluation assigned and this appeal ensued. In reviewing the record, the Board notes that the duty to assist has been complied with in connection with the hiatal hernia issue. In Francisco v. Brown, 7 Vet. App. 55, 58 (1994) the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") held that "[w]here entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." However, in AB v. Brown, 6 Vet. App. 35, 38 (1993), the Court held that where the claim arises from an original rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. In a recent decision, Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule from Francisco was not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability, and that separate [staged] ratings may be assigned for separate periods of time based on the facts found. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In addition, the VA has a duty to acknowledge all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole-recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 594. 38 C.F.R. § 4.7 provides that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. Under 38 C.F.R. § 4.20, "[w]hen an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural 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." Analysis The veteran is currently assigned a noncompensable evaluation for his service-connected hiatal hernia under the provisions of Diagnostic Code 7346 which provides as follows: Hernia hiatal: Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.............. 60 Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health................ 30 With two or more of the symptoms for the 30 percent evaluation of less severity......................................................................... ............ 10 In the instant case, the Board finds that the veteran's symptoms more nearly approximate the criteria for a rating to 10 percent for his service-connected hiatal hernia. Specifically, the Board finds that the medical evidence of record shows that the veteran has epigastric distress with dysphagia, pyrosis, and chest pain. Therefore, a 10 percent evaluation is warranted under the rating criteria discussed above. The evidence of record does not indicate that the veteran's symptoms are of such severity so as to satisfy the criteria for a rating higher than 10 percent. The veteran testified at a personal hearing in October 1997 that he did not have any regurgitation or vomiting, and is there is no evidence of considerable impairment of health. The veteran has been described by examiners as well nourished and well developed, and his weight has been listed as no less than 245 pounds. The veteran testified that he worked in construction, an occupation that would be difficult to pursue if one had considerable health impairment. Accordingly, the Board finds that the veteran's symptoms satisfy the assignment for a 10 percent evaluation, and no greater, for his service-connected hiatal hernia. ORDER A 10 percent evaluation for the veteran's service-connected hiatal hernia is granted, subject to VA regulations concerning payment of monetary benefits. REMAND The veteran asserts that he has difficulty sitting and standing for prolonged periods of time due to his low back and right ankle disabilities. The veteran testified that he has recurrent pain and swelling in his right ankle about three times a week, and that he has difficulty walking during flare-ups. The veteran also testified that he experiences low back pain on a daily basis. Although the veteran was most recently examined by VA for rating purposes in April 1997, the examiner did not provide sufficiently detailed information to evaluate the veteran's service connected low back and right ankle disabilities. Furthermore, there were no findings reported concerning the degree of functional loss as required by 38 C.F.R. § 4.40. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") found that the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45, when evaluating a service-connected disability involving a joint. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. Additionally, because the Codes used to rate the veteran's low back disability are cast in large measure in terms of limitation of motion, any examination for rating purposes must be expressed in terms of the degree of additional range-of-motion loss due to any pain on use, incoordination, weakness, fatigability, or pain during flare- ups. DeLuca. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability, or incoordination. The RO's attention is also directed to the recent case of Fenderson v. West, 12 Vet. App. 119 (1999). As noted above, the Court held that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Board stresses to the veteran the need to appear for the requested examinations. Although the VA has a duty to assist the veteran with the development of the evidence in connection with his claim, the duty to assist is not always a one-way street. 38 U.S.C.A. § 5107(a) (West 1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Federal regulations provide, in pertinent part, as follows: § 3.655 Failure to report for Department of Veterans Affairs examination. (a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b) (1999). In light of the discussion above, it is the decision of the Board that additional development is necessary prior to appellate review. Accordingly, the case be REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran and obtain the names and addresses of all medical care providers who treated him for his service-connected low back and right ankle disabilities from 1997. Based on his response, the RO should attempt to obtain copies of all such records from the identified treatment sources, not already obtained, as well as any VA clinical records, and associate them with the claims folder. The VA records requested should include those from the VAMC, Charleston. 2. The veteran should be afforded a VA orthopedic and neurological examination to determine the current severity of his low back and right ankle disabilities. The claims folder and a copy of this REMAND must be made available to the examiners for review, and all indicated tests and studies should be accomplished. The clinical findings and reasons upon which any opinion is based should be clearly set forth. The answers to the following questions should be proceeded with the Roman numeral corresponding to the Roman numeral of the question or instruction. No instruction/question should be left unanswered. If the examiner finds that it is not feasible to answer a particular question or follow a particular instruction, he or she should so indicate and provide an explanation. Instructions for the orthopedic examiner: I. The examiner should detail the degree of range of motion of the lumbar spine and right ankle, and what is considered normal range of motion in degrees. For VA purposes, normal dorsiflexion of the ankle is to 20 degrees and normal plantar flexion is to 45 degrees. II. The examiner should indicated whether there is listing of the whole spine to the opposite side, positive Goldthwaite's sign, abnormal mobility on forced motion, or muscle spasm on extreme forward bending. III. The examiner should determine whether the low back or right ankle exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. If the examiner is unable to make such a determination, it should be so indicated on the record. IV. The examiner should also express an opinion on whether pain could significantly limit functional ability during flare-ups or when the low back or right ankle is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If the examiner is unable to make such a determination, it should be so indicated on the record. The neurological examiner should identify any neurological complaints or findings attributable to the veteran's service- connected low back disorder. I. The examiner should note whether the veteran suffers from recurring attacks of intervertebral disc syndrome, and if so, the degree of intermittent relief he experiences between those attacks. The examiner should further state whether any intervertebral disc syndrome that may be present results in incapacitating episodes and the total duration of any of these episodes. II. The examiner should note if there is evidence that the veteran has sciatic neuropathy with characteristic pain attributable to the service connected back disability. If so, the examiner should state whether the sciatic neuropathy results in demonstrable muscle spasm, absent ankle jerk, or any other neurological finding. Each question must be fully answered and explained. The answers should be phrased using any standard of proof specified. If it is not feasible to answer any question posed, the reasons therefor should be indicated. The findings should be typed or otherwise recorded in a legible manner for review purposes. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the development requested herein above was conducted and completed in full. In particular, the RO should determine if all medical findings necessary to rate the veteran's service-connected low back and right ankle disabilities have been provided by the examiners and whether the examiners have responded to all questions posed. If the reports do not include adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (1999). 4. After the requested development has been completed, the RO should again review the veteran's claims. The RO should also consider the case of Fenderson (discussed above) pertaining to staged ratings. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), and given the opportunity to respond thereto. If the veteran fails to appear for any examination, the letter(s) notifying him of the date of the examinations should be included in the claims folder, and citation to 38 C.F.R. § 3.655 should be including in the SSOC. Thereafter, the case should be returned to the Board for further appellate review, if in order. The Board intimates no opinion, either legal or factual, as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals