Citation Nr: 1012549 Decision Date: 04/02/10 Archive Date: 04/14/10 DOCKET NO. 05-04 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected gastro esophageal reflux disorder (GERD) prior to February 9, 2006. 2. Entitlement to a disability rating greater than 10 percent for service-connected GERD beginning February 9, 2006. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from August 1994 to August 1998 and August 1999 to August 2002. This matter comes to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which, in part, granted service connection for GERD and assigned a noncompensable disability rating effective August 27, 2002, the day after the Veteran's discharge from military service. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2009. A transcript of this proceeding is associated with the claims file. This case was previously before the Board in May 2009 at which time it was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The May 2009 remand also included the issue of entitlement to service connection for a back disability. In a January 2010 rating decision, the RO granted service connection for lumbar strain and assigned a 10 percent rating, effective from August 27, 2002. That issue is no longer before the Board. In the January 2010 rating decision, the RO increased the disability rating for GERD to 10 percent, effective February 9, 2006. Where a veteran has filed a notice of disagreement (NOD) as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the Veteran's GERD claim remains before the Board both before and after February 9, 2006. FINDING OF FACT Prior to and beginning February 9, 2006 the Veteran's service-connected GERD has been manifested by dyspepsia, acid reflux, and epigastic distress. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, and no higher, for service-connected GERD have been met prior to February 9, 2006. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346 (2009). 2. The criteria for a disability rating greater than 10 percent for service-connected GERD have not been met beginning February 9, 2006. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7346 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the Veteran's claim that her service-connected GERD is more disabling than currently evaluated. Legal Criteria If a disability is determined to be service connected it will be assigned a disability rating. Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's service-connected GERD is rated by analogy under 38 C.F.R. § 4.115a, Diagnostic Code (DC) 7346, the diagnostic code for hernia hiatal. Under DC 7346 a 10 percent disability rating is warranted when the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment which 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. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the RO issued a rating decision in December 2002 which granted service connection for GERD and assigned a noncompensable disability rating, effective the day after the Veteran's discharge from military service. The Veteran appealed the noncompensable rating initially assigned. During the course of the appeal, the RO increased the rating to 10 percent, effective the date of a VA outpatient treatment report. There are two periods of time at issue here: from August 27, 2002 to February 9, 2006, when the Veteran's GERD was evaluated as noncompensably disabling; and from February 9, 2006 to the present, when the Veteran's GERD was evaluated as 10 percent disabling. The Board will consider the proper evaluation to be assigned for both time periods per Fenderson. Relevant Evidence A review of this appeal is as follows. The Veteran's service treatment records show complaints of GERD symptoms from May to June 2002. She submitted a claim for entitlement to service connection for GERD in September 2002 and was afforded a VA examination in November 2002. During this examination the Veteran indicated that she was diagnosed with GERD earlier that year. The examiner noted that there was a history of epigastric discomfort and the Veteran was found to be positive for Helicobacter pylori. She had a barium enema, a barium swallow, upper GI series, and also endoscopy, but all of these tests were essentially negative. She was also initially started on Zantac and Aciphex and, at the time of the examination, was taking Pepcid AC. There was no history of hematemesis or melena and no nausea or vomiting. Physical examination revealed no epigastric tenderness or organomegaly and noted that bowel sounds were within normal limits. The diagnosis was GERD, stable. By rating decision dated in December 2002 the RO granted service connection for GERD and assigned a noncompensable disability rating from August 27, 2002, the day after the Veteran's discharge from military service. The Veteran disagreed with this initial rating and was afforded a second VA examination in June 2007. During the June 2007 VA examination the Veteran reported an onset of GERD in 2001. She indicated that she had symptoms since 2001 with certain foods. She also noted that she has been treated for H Pylori infection in the past since 2001. She has been taking medication since 2001 for reflux symptoms and over the last year she noted more symptoms after meals with more frequent pain and nausea. There was no vomiting and no nighttime symptoms after bed. She complained that her GERD had been getting significantly worse since the initial onset and indicated that she was currently taking Omeprazole with no side effects. There was no history of hospitalization or surgery, no trauma to the digestive system, no neoplasm, no surgical repair, no wound related to the hernia, and no tuberculosis of the peritoneum. Physical examination revealed no hernia, a normal abdominal examination with normal bowel sounds, and no visceromegaly. Upper gastrointestinal (GI) series revealed an impression of GERD into the distal esophagus without mucosal lesion. The examiner noted that, at the time of the examination, the Veteran was employed full-time as a supply technician and opined that the Veteran's GERD resulted in no effect on usual occupation or daily activities. Pursuant to the Board remand, the Veteran was afforded a third VA examination in October 2009. At that time, she indicated that she had discontinued prescription medication for her GERD as there was poor response. She was only taking over the counter Prilosec once daily which was reportedly somewhat effective. She reported problems with spicy foods, caffeinated beverages, and pancake syrup. She indicated that she was experiencing heartburn three times per week where she felt as if the food was regurgitating. She indicated that she had an endoscopy in 2006 which was normal. The Veteran denied hospitalization or surgery, trauma, neoplasm, periods of incapacitation due to stomach or duodenal disease, episodes of abdominal colic, nausea or vomiting, and abdominal distension. She did report a gnawing or burning pain approximately two times per week which occurred one to several hours after eating and last one hour. The location of the pain was epigastric and it was relieved by Prilosec or water. The Veteran also denied any episodes of hematemesis or melena as well as nausea, vomiting, and diarrhea. She did report symptoms such as belching and bloating. Physical examination was negative for significant weight loss or malnutrition as well as signs of anemia and was reportedly normal. The examiner noted that the Veteran continued to be employed full-time as a supply technician but indicated that the Veteran missed some work in the past year due to stomach problems, reportedly less than one week. The diagnosis was GERD and the examiner opined that there were no significant effects on unusual occupation or daily activities. Also of record are VA outpatient treatment reports dated from November 2002 through February 2009. Significantly, in June 2003 the Veteran reported dyspepsia. An October 2004 treatment note shows complaints of acid reflux for two to three years for which upper GI (gastrointestinal) had been done as well as endoscopy which showed gastritis. Complaints of reflux were noted again in March 2005. On February 9, 2006 the Veteran reported epigastric pain and acid reflux. During the March 2009 hearing the Veteran complained of burning in her stomach, especially after eating certain foods. She indicated that she avoided the offending foods and took Pepcid AC with good relief. She denied missing any time from work as a supply technician on Anniston Army Depot due to her GERD. Analysis Based on these findings, the Board finds that the evidence of record substantiates a 10 percent evaluation, but no higher, for the period of time prior to February 9, 2006. As above, under DC 7346 a 10 percent disability rating is warranted when the evidence shows two or more of the following symptoms: persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. During the November 2002 VA examination the Veteran complained of epigastric distress and less than a year later also complained of dyspepsia in June 2003. Furthermore, an October 2004 treatment note shows complaints of acid reflux for the last two to three years. While it is unclear whether the Veteran was also experiencing dyspepsia and/or acid reflux at the time of the November 2002 VA examination, the benefit of the doubt is afforded the Veteran on this point and a rating of 10 percent for the full pendency of the Veteran's claim is warranted. As for the potential for an even higher rating at any time during the appeal, the next higher rating of 30 percent under DC 7346 requires persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. While the record shows that the Veteran suffers from dyspepsia, acid reflux, epigastic distress, and left shoulder problems the Board notes that the Veteran has been rated separately for her service-connected left shoulder bursitis/tendonitis. Furthermore, the record shows that the Veteran's symptoms are relieved, for the most part, by taking Pepcid AC and watching what she eats. In addition, the record shows that the Veteran has not missed more than one week of work due to her service-connected GERD. Such findings are not indicative of considerable impairment of health and are already contemplated in the assigned evaluation. The Board has also considered whether there are any other diagnostic codes pertaining to the digestive system that would result in a more favorable rating for the Veteran, including 38 C.F.R. § 4.114, DC 7305. DC 7305 provides ratings for duodenal ulcers. Specifically, pursuant to DC 7305 moderate duodenal ulcer, with recurrent episodes of severe symptoms 2 or 3 times a year averaging 10 days in duration, or with continuous moderate manifestations warrants a 20 percent rating. However, there is no evidence of ulceration and the duodenal bulb in any of the above cited medical records. Furthermore, there is no evidence of recurrent episodes of severe gastrointestinal symptoms 2 or 3 times a year averaging 10 days in duration. As above, the record shows that the Veteran's symptoms are relieved, for the most part, by taking Pepcid AC and watching what she eats. As such, objective findings do not warrant a disability rating in excess of 10 percent pursuant to DC 7305. There are no other diagnostic codes for consideration. Accordingly, the Board finds that a 10 percent rating is the appropriate evaluation in this case for the entire period on appeal and that the degree of impairment resulting from the service-connected GERD in this case does not more nearly approximate the next higher rating. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, (Fed. Cir. 2009). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of her claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The appellant was notified that her claim was awarded with an effective date of August 27, 2002, the day after her separation from active service, and an initial disability rating was assigned. She was provided notice how to appeal that decision, and she did so. She was provided a statement of the case that advised her of the applicable law and criteria required for a higher rating and she demonstrated her actual knowledge of what was required to substantiate a higher rating in her argument included on her Substantive Appeal. Although she was not provided pre- adjudicatory notice that she would be assigned an effective date in accordance with the facts found as required by Dingess, she was assigned the day after her discharge from military service as an effective date, the earliest permitted by law. 38 U.S.C.A. § 5110(a). Moreover, complete notice was sent in June 2008 correspondence and the claim was readjudicated in August 2008 and January 2010 supplemental statements of the case. Mayfield, 444 F.3d at 1333. Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that she had a meaningful opportunity to participate in the adjudication of her claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores, 22 Vet. App. at 49. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER An initial disability rating of 10 percent, but no higher, for GERD prior to February 9, 2006 is granted. A disability rating greater than 10 percent for GERD beginning February 9, 2006 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs