Citation Nr: 0608389	
Decision Date: 03/23/06    Archive Date: 04/04/06

DOCKET NO.  04-23 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, 
Delaware



THE ISSUE

Entitlement to an initial compensable rating for 
gastroesophageal reflux disease (GERD).



ATTORNEY FOR THE BOARD

Timothy D. Rudy, Associate Counsel




INTRODUCTION

The veteran served on active duty from June 1993 to May 2001.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Wilmington, Delaware.  


FINDING OF FACT

The objective and competent medical evidence of record 
demonstrates that the veteran's GERD is manifested by 
subjective and occasional complaints of pyrosis and 
regurgitation, controlled by Nexium, without evidence of two 
or more of the following symptoms productive of some level of 
severity: epigastric distress with dysphagia, pyrosis and 
regurgitation, accompanied by substernal or arm or shoulder 
pain.


CONCLUSION OF LAW

The schedular criteria for an initial compensable rating for 
GERD have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 
4.31, 4.114, Diagnostic Code (DC) 7399-7346 (2005).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Factual Background

Service medical records reflect the veteran was diagnosed 
with GERD in March 2001.

Post-service, private medical records from October 2001 to 
May 2003 reflect treatment for GERD.  A barium swallow test 
showed the veteran had GERD, according to a private October 
200l medical record.  The record referred to tertiary 
contractions as surprising and noted some distal esophagitis 
might be present.  

Another private October 2001 medical record reflects that an 
endoscopy showed the veteran had GERD, that Nexium was 
prescribed for the veteran, and that his dosage might be 
increased in two weeks.

A December 2001 private medical record from B.W.G., M.D., 
notes that the veteran had chronic GERD for the past three to 
five years.  Dr. B.W.G. said the veteran reported frequent 
heartburn, regurgitation and occasional water brash.  
Treatment with high-dose HII blockers for the past three 
years was noted with poor control of reflux symptoms.  The 
veteran denied any dysphagia, odynophagia, hematemesis or 
melena.  The veteran had an upper gastrointestinal (UGI) 
series which was essentially normal, except for evidence of 
reflux.  Dr. B.W.G. said the veteran was at risk for 
Barrett's esophagus and scheduled an upper endoscopy to rule 
out that possibility.  Impression was poor control of reflux 
symptoms.  

A January 2002 private medical record discloses the endoscopy 
found a hiatal hernia with the need to rule out a short 
segment Barrett's.

In a May 2002 private medical record, it was noted the 
veteran complained of abdominal pain for a week.  This was 
described as a generalized cramping sensation.  I.L.L., M.D., 
said bowel sounds were normal and the abdomen was soft but 
diffusely tender.  There was no evidence of ascites 
formation, caput medusa or fistula formation.  Diagnosis was 
abdominal pain of uncertain etiology.  The veteran declined a 
consultation with a surgeon.  

In an April 2003 signed statement, Dr. B.W.G. said the 
veteran had excellent control of his reflux symptoms after 
taking Nexium twice daily.  Diarrhea also was resolved.  Dr. 
B.W.G. said no specific follow-up was deemed necessary.

A May 2003 private hospital record reflects testing showed 
the veteran's findings were consistent with sigmoid 
diverticulitis.

The veteran, who was 28 years old, underwent a VA examination 
in June 2003.  He said he began to complain of bad heartburn 
on a daily basis approximately four years before while in the 
service.  Treatment with Zantac did not lead to much 
improvement, so he was switched to Prilosec for the next two 
to three years.  No testing on the cause of heartburn was 
done while he was in the military.  Post-service, a private 
UGI test confirmed GERD.  In December 2001 an endoscopy and 
biopsy were both performed.  The veteran began treatment with 
Nexium.  Three weeks prior to the examination, the veteran 
complained of severe colicky pain in the left side of the 
abdomen.  After three days, he went to a hospital emergency 
room where he was treated with intravenous antibiotics.  He 
was prescribed Cipro for five days and Flagyl for seven days.  
In the interim the veteran continued to improve without the 
abdominal pain recurring.  No nausea, vomiting or diarrhea 
were noted.  

On examination, the veteran weighed 255 pounds and was noted 
as obese.  Protuberant abdominal contours with significant 
abdominal striae also were noted, especially in the lower 
abdominal wall.  Hepatosplenoorganomegaly was absent.  It was 
noted there were no hernias and bowel sounds were normal.  
The veteran was diagnosed with GERD and colonic diverticular 
disease.

The veteran's written statement of June 2004 said he did not 
experience any of the schedular GERD symptoms at the time of 
his VA examination in June 2003 because he took two daily 
dosages of Nexium.  He said that before he took Nexium twice 
a day, he had daily heartburn, nausea and regurgitation.  
Since the VA exam he cut back to one Nexium pill daily 
because of side effects, such as stomach pains, cramping and 
diarrhea.  The veteran said he takes a second Nexium once or 
twice a week when he has heartburn, nausea and regurgitation.




II.  Legal Analysis

A.  Duty to Notify and Assist

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107) (West 2002 & Supp. 2005) became law.  
Regulations implementing the VCAA have since been published.  
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).  The 
VCAA and implementing regulations apply to the case at hand, 
and the requirements therein appear to have been met.  

In this case, the Board finds that all relevant facts have 
been properly developed in regard to the veteran's claim, and 
no further assistance is required in order to comply with 
VA's statutory duty to assist him with the development of 
facts pertinent to his claim.  See 38 U.S.C.A. § 5103A; 
38 C.F.R. § 3.159.  Specifically, the RO has obtained records 
of treatment reported by the veteran addressing his claim.  
There is no indication from the record of additional medical 
treatment for which the RO has not obtained, or made 
sufficient efforts to obtain, corresponding records.

The Board also is satisfied that the RO met VA's duty to 
notify the veteran of the evidence necessary to substantiate 
his claim in a letter issued in December 2002.  By this 
letter, the RO also notified the veteran of exactly which 
portion of that evidence was to be provided by him and which 
portion VA would attempt to obtain on his behalf.  See 
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also 
Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  In this 
letter, the veteran also was advised to submit additional 
evidence to the RO, and the Board finds that this instruction 
is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) 
that VA request that a claimant provide any evidence in his 
or her possession that pertains to a claim.  

Here, the noted December 2002 "duty to assist" letter was 
issued before the appealed rating decision.  Moreover, as 
indicated above, the RO has taken all necessary steps to both 
notify the veteran of the evidence needed to substantiate his 
claim and assist him in developing relevant evidence.  All VA 
notices must be read in the context of prior, relatively 
contemporaneous communications to the veteran.  See Mayfield 
v. Nicholson, supra.  

During the pendency of this appeal, on March 3, 2006, the 
United States Court of Appeals for Veterans Claims (Court) 
issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which 
held that the VCAA requires the VA to provide the claimant 
with notice of missing information and evidence that will 
assist in substantiating all the elements of the claim.  
Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02-1056 (U.S. 
Vet. App. March 3, 2006).  In the Mayfield case, the Court 
addressed the meaning of prejudicial error in the context of 
the VCAA duty-to-notify.  Mayfield v. Nicholson, supra.  As 
explained below, evidence from a VA examination determines 
the veteran is not entitled to an initial compensable rating 
for his service-connected disorder.  Therefore, any lack of 
notice by the VA to the veteran as now required by 
Dingess/Hartman constitutes harmless error.

Accordingly, the Board finds that no prejudice to the veteran 
will result from an adjudication of his claim in this Board 
decision.  Rather, remanding this case back to the RO for 
further VCAA development would be an essentially redundant 
exercise and would result only in additional delay with no 
benefit to the veteran.  See Bernard v. Brown, 4 Vet. App. 
384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 
430 (1994) (remands which would only result in unnecessarily 
imposing additional burdens on VA with no benefit flowing to 
the veteran are to be avoided).


B.  Discussion

In accordance with 38 C.F.R. § 4.1, 4.2, 4.41 (2005) and 
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has 
reviewed the veteran's service medical records and all other 
evidence of record pertaining to the history of his service-
connected disability, and has found nothing in the historical 
record that would lead to a conclusion that the current 
evidence of record is inadequate for rating purposes.

Disability ratings are assigned in accordance with the VA's 
Schedule for Rating Disabilities, and are intended to 
represent the average impairment of earning capacity 
resulting from disability.  38 U.S.C.A. § 1155.  The Board 
attempts to determine the extent to which the veteran's 
service-connected disability adversely affects his ability to 
function under the ordinary conditions of daily life, and the 
assigned rating is based, as far as practicable, upon the 
average impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.10.  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.  
38 C.F.R. § 4.7 (2005).

The Board here notes that this is a case where the veteran 
has expressed continuous disagreement with the initial rating 
assignment.  The Court has addressed the distinction between 
a veteran's dissatisfaction with the initial rating assigned 
following a grant of entitlement to compensation, and a later 
claim for an increased rating.  See Fenderson v. West, 12 
Vet. App. 119, 126 (1999).  The Court noted that the rule 
from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), as to the 
primary importance of the present level of disability, is not 
necessarily applicable to the assignment of an initial rating 
following an original award of service connection for that 
disability.  Rather, the Court held that, at the time of an 
initial rating, separate ratings could be assigned for 
separate periods of time based upon the facts found - a 
practice known as assigning "staged" ratings.

In Meeks v. West, 12 Vet. App. 352 (1999), the Court 
reaffirmed the staged ratings principle of Fenderson and 
specifically found that 38 U.S.C.A. § 5110 and its 
implementing regulations do not require that the final rating 
be effective the date of the claim.  Rather, the law must be 
taken at its plain meaning and the plain meaning of the 
requirement that the effective date be determined in 
accordance with facts found is that the disability rating 
must change to reflect the severity of the disability as 
shown by the facts from time to time.

The RO granted service connection for GERD, and evaluated the 
disorder at a non-compensable rating under 38 C.F.R. § 4.114, 
DC 7399-7346.  See 38 C.F.R. § 4.20 (2005) (when an unlisted 
condition is encountered it will be permissible to rate it 
under a closely related disease or injury, in which not only 
the functions affected, but the anatomical localization and 
symptomatology are closely analogous); and 38 C.F.R. § 4.27 
(unlisted disabilities requiring rating by analogy will be 
coded first by the numbers of the schedule identifying the 
most closely related body part or body system involved and 
"99"). 

The hyphenated diagnostic code in this case indicates there 
is no specific diagnostic code for GERD and that this 
digestive disorder is rated under DC 7346 for hiatal hernias.  
Under 38 C.F.R. § 4.114, GERD is rated under DC 7399-7346 
(2005).  The Board notes that the veteran was diagnosed with 
a hiatal hernia by private medical personnel in January 2002.  

It is noted that there are diseases of the digestive system, 
particularly within the abdomen, which, while differing in 
the site of pathology, produce a common disability picture 
characterized in the main by varying degrees of abdominal 
distress or pain, anemia and disturbances in nutrition.  
Consequently, certain coexisting diseases in this area, as 
indicated in the instruction under the title "Diseases of 
the Digestive System," do not lend themselves to distinct 
and separate disability evaluations without violating the 
fundamental principle relating to pyramiding as outlined in 
§ 4.14.  See 38 C.F.R. § 4.113 (2005).

Under DC 7346 (hiatal hernia), a 30 percent disability rating 
is warranted for persistently recurrent epigastric distress 
with dysphagia, pyrosis and regurgitation accompanied by 
substernal or arm or shoulder pain, productive of 
considerable impairment of health.  38 C.F.R. § 4.114, DC 
7346 (2005).  A 10 percent disability rating is warranted 
with two or more of the symptoms for the 30 percent 
evaluation, though of less severity.  Id..  In every instance 
where the minimum schedular evaluation requires residuals and 
the schedule does not provide a no-percent evaluation, a no-
percent evaluation will be assigned when the required 
residuals are not shown.  38 C.F.R. § 4.31.

Upon review of the competent and probative medical evidence 
of record, the Board is of the opinion that an initial 
compensable rating for the veteran's service-connected GERD 
is not warranted.

The evidence since service shows the veteran regularly takes 
medication for symptoms of GERD and this keeps his symptoms 
under control.  A private medical record dated in December 
2001 discloses the veteran reported frequent heartburn and 
regurgitation (two of the schedule rating symptoms), but 
denied dysphagia, odynophagia, hematemesis or melena.  Dr. 
B.W.G. said treatment with high-dose HII blockers during the 
previous three years only poorly controlled reflux symptoms.  
However, those symptoms were under control near the time of 
the VA examination because of medication.  In an April 2003 
private medical record, Dr. B.W.G. said the veteran had 
excellent control of his reflux symptoms after taking Nexium 
twice daily.  This record is negative for comment on 
heartburn, regurgitation, dysphagia, odynophagia, 
hematemesis, or melena.  Significantly, the VA examination of 
June 2003 did not demonstrate GERD symptomatology of any 
severity for the veteran, who weighed 255 pounds and was 
noted obese.  The VA examination is negative for dysphagia, 
pyrosis and regurgitation, or substernal or arm or shoulder 
pain.  

The veteran's written statement of June 2004 concedes 
medication taken at the time of the June 2003 VA examination 
controlled his GERD symptoms.  Since then, he contends he cut 
back the dosage of his medication so he now experienced two 
symptoms, pyrosis and regurgitation, once or twice a week.  
However, the veteran also says that he is able to alleviate 
these symptoms by temporarily increasing his dosage of 
Nexium.  There is no record evidence showing any level of 
severity from the veteran's occasional pyrosis and 
regurgitation.

The competent and objective medical evidence preponderates 
against a finding that the veteran's service-connected GERD 
disorder warrants a rating in excess of the currently 
assigned non-compensable evaluation.  Moreover, the evidence 
is not so evenly balanced as to allow for the application of 
reasonable doubt.  38 U.S.C.A. § 5107(b).

There is no indication in the record of any unusual 
disability picture that application of regular scheduler 
standards is impractical, especially in the absence of any 
allegation of marked interference with employment.  
Therefore, the Board finds that the criteria for submission 
for an extra-schedular rating pursuant to 38 C.F.R. 
§ 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 
237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash 
v. Brown, 8 Vet. App. 218, 227 (1995).

Finally we note that, in view of the holding in Fenderson, 
supra, the Board has considered whether the veteran is 
entitled to a "staged" rating for any of his service-
connected GERD, as the Court indicated can be done in this 
type of case.  Based upon the record, we find that at no time 
since the veteran filed his original claim for service 
connection has the disability on appeal been more disabling 
than as currently rated under the present decision of the 
Board.


ORDER

An initial compensable rating for GERD is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs