Citation Nr: 0434502 Decision Date: 12/30/04 Archive Date: 01/05/05 DOCKET NO. 95-25 953 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD). ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1973 to January 1976 and from September 1977 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision by the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA), which established service connection for GERD and assigned a 0 percent disability rating effective from October 25, 1999. The veteran subsequently perfected an appeal as to the assigned compensation level in that determination. In a March 2001 decision the Board denied the veteran's increased rating claims for low back and skin disorders and remanded his increased rating claim for GERD for additional development. The RO, in a March 2003 rating decision, granted entitlement to an increased 10 percent disability rating for GERD effective from October 25, 1999. As a higher schedular evaluation for this disability is possible, the issue of entitlement to an increased rating remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has sufficiently notified him of the information and evidence necessary to substantiate the claim. 2. The evidence demonstrates the veteran's service-connected GERD is presently manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, but that the disorder is not productive of a considerable impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the veteran's service-connected GERD have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law. Regulations implementing the VCAA have been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The VCAA and the implementing regulations apply in the instant case. A review of the record shows the veteran was notified of the evidence necessary to substantiate his claim by correspondence dated in October 2003. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. While the notice provided to the veteran in October 2003 was not given prior to the first agency or original jurisdiction (AOJ or RO) adjudication of the claim, the notice was provided by the AOJ prior to the most recent transfer of the veteran's case to the Board. The issue was re-adjudicated and supplemental statements of the case provided to the veteran in October 2003 and August 2004. The veteran has been provided every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, to decide the appeal would not be prejudicial error. See VAOPGCPREC 7- 2004 (July 16, 2004). A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. In this case, the October 2003 notice letter provided to the veteran generally informed him of the evidence not of record that was necessary to substantiate his claim and identified which parties were expected to provide such evidence. Although the letter did not specifically address the VCAA "fourth element," the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to the claim. In fact, 38 C.F.R. § 3.159(b)(1), which includes this "fourth element," was cited in a March 2003 supplemental statement of the case. In light of the actual notice provided, the Board finds that any content deficiency in the notice letter was non-prejudicial error. All the VCAA requires is that the duty to notify be satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Here, because each of the content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the veteran covering all content requirements is harmless error. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. See 38 C.F.R. § 3.159. In this case, the veteran's available service medical records and all identified and authorized post- service medical records relevant to the issue on appeal have been requested or obtained. Therefore, the Board finds further attempts to obtain any additional evidence would be futile. In claims for disability compensation the VCAA duty to assist requires VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. The Board notes that VA medical opinions pertinent to the matter on appeal were obtained in August 2001 and April 2002. The available medical evidence is sufficient for an adequate determination. Therefore, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled. Factual Background Service medical records show an upper gastrointestinal radiology (UGI) series in March 1986 revealed a small sliding hiatal hernia with reflux. An examiner noted the veteran's chest pains were probably secondary to his hiatal hernia with reflux. The veteran's February 1994 retirement examination revealed no clinical abnormalities of the abdomen or viscera. In his report of medical history he denied frequent indigestion or stomach or intestinal trouble. The examiner noted the veteran reported a tendency to get a full sensation with sensations of pressure to the mid chest after eating, but that he denied any problem swallowing. Records dated in April 1994 show he complained of fullness in the mid-chest area about five minutes after eating, but that he denied any symptoms of heartburn or symptomatic reflux. A UGI series study at that time was normal, with no evidence of hiatal hernia or esophageal reflux. A May 1994 report noted complaints of epigastric pain related to his having eaten spicy food the previous night. The veteran was provided medication and instructed to return to the clinic if there was no improvement in 72 hours. In correspondence dated in October 1999 the veteran requested entitlement to service connection for a hiatal hernia. He noted he had been treated for this disorder during active service. VA medical records dated in November 1999 show the veteran complained of a burning in his chest and a sour taste in his mouth at times. He stated Zantac usually helped, but that he had run out. He denied any nausea, vomiting, abdominal pain, or melena. The examiner's assessment was GERD and a refill for Zantac was provided. In June 2000, the veteran reported medication helped, but that he had problems when he ate spicy foods. Records dated in August 2000 show he reported his reflux had increased in severity and that he had vomited after eating, experienced regurgitation, and had seen blood in his stool approximately one month earlier. He denied any hematemesis. The diagnoses included GERD. The veteran was provided a prescription for Prevacid and instructed to stop Zantac. An October 2000 report noted the veteran was still symptomatic with reflux. A March 2001 gastroenterology consult noted the veteran complained of chronic heartburn-like symptoms over the previous 6 months exacerbated by chocolate, beer, caffeine, and spicy foods. He reported intermittent relief with Prevacid and denied any nausea, vomiting, diarrhea, constipation, or weight loss. The diagnosis was chronic GERD. The veteran was advised to make life style modifications like avoiding foods that exacerbated his heartburn. On VA examination in August 2001 the veteran complained of persistent symptoms requiring a daily regimen of Prevacid. He described retrosternal chest pain brought about by heavy meals, coffee, chocolate, and milk. He stated his symptoms were worse at night and that he had elevated the head of his bed by 30 degrees so he could sleep. The examiner noted there was no evidence of dysphagia, arm pain, hematemesis, melena, regurgitation, nausea, or vomiting. On examination the veteran was in no acute distress and his abdomen was soft, nontender, nondistended, and mildly obese. It was noted that a September 2000 UGI series study had been normal, with no evidence of hiatal hernia or esophageal reflux. The diagnosis was reflux esophagitis established in 1986 on chronic medical therapy with Prevacid, but no chronic sequelae at that time. At his VA examination in April 2002 the veteran reported that despite the use of Prevacid he continued to experience symptoms on a regular basis with flare-ups five times per month. The examiner noted the veteran was well developed, well nourished, and in no acute distress. There was no history of Barrett's esophagitis, hematemesis, nausea, vomiting, melena, or bright red blood per rectum. The diagnosis was GERD secondary to hiatal hernia, since 1986, currently treated with diet modification and Prevacid. VA medical records dated in March 2003 show the veteran complained of increased epigastric/chest pains radiating into the arms a couple of times per day lasting two to three minutes. He reported nausea, vomiting, and regurgitation, but no blood in stools or change in bowel habits. The diagnosis was GERD and the treatment plan included a trial of Aciphex. He was instructed to add Zantac to his morning medication regimen if symptoms were not reduced. In an April 2003 statement the veteran, in essence, report that his GERD was manifested by a struggle to breathe after episodes of regurgitation due to foods or fluids in his esophagus, stomach and throat burning, terrible pains in his chest, and pain to the shoulders and arms during and after these episodes. He stated it took a very long time for the symptoms to clear before he became functional again. He stated there had been numerous times when he had experienced difficulty swallowing foods and liquids and that he had to be careful and eat slowly. He claimed that the process affected his activities of daily life. In a July 2003 statement he stated it usually took several hours for him to regain total composure after an attack, that his chest and throat burned, and that he had difficulty swallowing during these periods. Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2004). The United States Court of Appeals for Veterans Claims (Court) has held that separate or "staged" schedular disability ratings may be assigned subsequent to an initial award of service connection based upon the facts in each case. See Fenderson v. West, 12 Vet. App. 119 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2004). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2004). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2004). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 (2004). The Rating Schedule provides a 10 percent rating for hiatal hernia when there are two or more of the symptoms required for a 30 percent rating but of lesser severity than is required for that evaluation; a 30 percent rating with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, all of which is productive of a considerable impairment of health; and a 60 percent rating with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2004). A regulatory amendment, effective July 2, 2001, made changes to the schedular criteria for evaluating diseases of the digestive system; however, the criteria for evaluating hiatal hernia were unchanged. Based upon review of the entire record, the Board finds persuasive medical evidence demonstrates that the veteran's service-connected GERD is presently manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain, but that the disorder is not productive of a considerable impairment of health. In fact, the August 2001 VA examiner noted the veteran had no chronic sequelae at that time. The April 2002 examiner noted that the veteran was well developed, well nourished, and in no acute distress. Although records show the veteran requires medication as much as twice per day, his assertions that the disability is more severely disabling are unsupported by objective medical findings of a considerable impairment of health. There is also no probative evidence of vomiting, material weight loss, hematemesis or melena with moderate anemia, or any other symptom combinations productive of severe impairment of health. Therefore, the Board finds that a higher or staged rating for the veteran's service-connected disability is not warranted. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Board finds the preponderance of the evidence is against the veteran's claim. ORDER Entitlement to a rating in excess of 10 percent for GERD is denied. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2