Citation Nr: 0102228 Decision Date: 01/26/01 Archive Date: 01/31/01 DOCKET NO. 99-22 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from October 1968 to February 1969. His appeal comes before the Board of Veterans' Appeals (Board) from a December 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which granted secondary service connection and assigned a zero percent rating for the veteran's gastroesophageal reflux disease (GERD), effective from March 24, 1998. The veteran appealed for the assignment of a compensable rating. In an October 1999 decision, the RO assigned a 10 percent Rating for GERD, effective from the date of receipt of claim for service connection (March 24, 1998). As the 10 percent evaluation is less than the maximum available under the applicable diagnostic criteria, the veteran's claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As the veteran appealed the RO's initial determination of rating, this is an appeal from the original assignment of a disability rating. Therefore, the issue in this veteran's case presents an "original claim" as contemplated under Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found) rather than a claim for an "increased rating." The period at issue is from March 24, 1998. The veteran also appealed the RO decision granting increased ratings for a cervical strain (to 20 percent) and post- traumatic headaches (to 10 percent); he appealed for higher ratings, but, in a statement submitted by the veteran and received by the RO in September 1999, he withdrew both increased rating issues from appellate status. The veteran has claimed entitlement to depression as secondary to his service-connected GERD. The RO sent the veteran a letter dated in September 1999, informing him that he must submit a "well grounded" claim for secondary service connection. There has been a significant change in the law since that time. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the Department of Veterans Affairs (VA) with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. Under these circumstances, the Board refers this matter to the RO for appropriate action. REMAND The veteran asserts, in essence, that his GERD is more disabling than currently evaluated. He indicated at in his September 1999 personal hearing that his GERD symptomatology includes pain, weight loss, dysphagia, sleeplessness, and depression. In a September 1999 statement, the veteran further reported that GERD caused him regurgitation and halitosis. Following a review of the relevant evidence, it is the Board's judgment that there is a further duty to assist the veteran with the development of his claim for the assignment of a rating in excess of 10 percent for his service-connected GERD. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The relevant medical evidence is summarized below. An upper gastrointestinal (GI) X-ray series performed in July 1997 showed that the veteran had a normal duodenal bulb; there was reflux from the stomach into the esophagus but no demonstrable hiatus hernia or evidence of ulceration or malignancy. The veteran said at a VA examination in June 1998 that he had heartburn, which had apparently begun in 1993 after about seven years of Advil use for neck and back pain. The examiner diagnosed a history of GERD. In May 1999, an upper GI study revealed negative results for the esophagus, stomach, and duodenum, but reflux was noted during the course of the esophagus study. The examiner diagnosed mild reflux. A June 1999 treatment record from E. D., A.P.R.N., shows that the veteran was evaluated for psychiatric complaints, including sadness and hopelessness. The impression was major depressive disorder. According to a September 1999 VA treatment note, the veteran had a return of depressive symptoms. He gave a history of a 15 to 20 pound weight loss over the prior summer, along with an inability to function at his job (leading to his first career dismissal), poor concentration, and edginess. The note reflected that he had been grieving the death of a cousin in a motor vehicle accident. The criteria for the next highest (30 percent) rating for GERD include persistent recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The veteran has reported many of these symptoms, which he has attributed to his service-connected GERD. The 60 percent evaluation 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. See 38 C.F.R. § 4.115, Code 5346. In reviewing the record, the Board finds that there appears to be some overlap between gastrointestinal symptomatology and both a nonservice-connected psychiatric disorder and a cervical strain (currently rated 20 percent). Also, while the RO attributed the veteran's recent weight loss to depression, the medical evidence is not clear on this relevant point. It is the Board's judgment that the veteran should be afforded a gastrointestinal examination for the purpose of determining the current severity of his GERD, with the examiner distinguishing symptoms due to the service- connected disorder from his service-connected cervical strain or any relevant symptomatology from a nonservice-connected disability that may be present. The Board also finds that attempts should be made to secure any medical records pertinent to the claim, as detailed in the below remand instructions. Accordingly, this case is remanded to the RO for the following action: 1. The RO should contact the veteran and ask him to identify all sources of VA and non-VA evaluation or treatment since September 1999 for gastrointestinal symptoms, to include GERD; a cervical strain, and psychiatric symptoms. After obtaining any necessary consent from the veteran, complete clinical records of all such evaluation or treatment should be obtained. 2. The RO should schedule the veteran for a VA gastrointestinal examination. The examiner is requested to distinguish, to the extent that is possible, symptoms attributable to GERD from any symptoms that may be due to a psychiatric disorder or a service-connected cervical strain. The veteran's weight must be determined and, if there has been weight loss in recent years, the examiner should indicate the etiology of the weight loss (i.e., whether it is secondary to the depressive disorder or some other condition, or whether it is at least as likely as not due to service-connected GERD). All indicated tests or studies, or any additional examinations (i.e., psychiatric) should be performed. The claims file must be made available to the examiner(s) for review. 3. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. 4. After the above development has been completed, the RO should review the reports to ensure proper compliance and take immediate corrective action if needed. Thereafter, the veteran's claim of entitlement to the assignment of an evaluation in excess of 10 percent for GERD should be adjudicated. If the determination remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case and afforded adequate time in which to respond thereto before the case is returned to the Board. 5. The veteran has a right to present any additional evidence or argument while the case is in remand status. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); and Falzone v. Brown, 8 Vet. App. 398 (1995). The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran with regard to the issue on appeal until he is notified. R. F. WILLIAMS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).