Citation Nr: 1140904 Decision Date: 11/03/11 Archive Date: 11/16/11 DOCKET NO. 09-38 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a digestive disorder, claimed as an acid reflux disorder. 2. Entitlement to an earlier effective date than March 5, 2008 for service connection of chronic lumbar strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran, who is the Appellant or Claimant in this case, had active service from October 1992 to October 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, granted service connection for chronic lumbar strain, effective March 5, 2008, and assigned an initial rating of 20 percent, and denied service connection for a migraine headaches disorder, an acid reflux disorder, and a chronic cervical spine disorder. In April 2009, the Veteran expressed disagreement with the effective date (March 5, 2008) of the grant of service connection for chronic lumbar strain and the denials of service connection for a migraine headache disorder and an acid reflux disorder. The RO issued a statement of the case in August 2009 that listed five issues, namely, the evaluation of the chronic lumbar strain disability at 20 percent, the denials of service connection for migraine headaches disorder, service connection for an acid reflux disorder, service connection for a cervical spine disorder, and the issue of an earlier effective date for the grant of service connection for the chronic lumbar strain disability. In October 2009, the Veteran perfected her appeal only with regard to the issues of service connection for migraine headache disorder, service connection for an acid reflux disorder, and the effective date of the grant of service connection for chronic lumbar strain. In a May 2010 the RO issued a rating decision granting service connection for a migraine headache disorder, and assigned an initial rating of 30 percent. As that grant of service connection represented a complete grant of the issue on appeal, the issue of service connection for a migraine headache disorder is no longer before the Board. As noted above, the Veteran's claim was originally classified as one of entitlement to service connection for an acid reflux disorder. The Veteran essentially contends that she has a chronic digestive disorder, characterized by acid reflux. As the record of evidence indicates that medical assessments of her disorder have varied over the years, the Board finds that that the claim for service connection for an acid reflux disorder should be broadened and recharacterized as service connection for a digestive disorder, claimed as an acid reflux disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a health disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other diagnoses of record). The issue of a clear and unmistakable error (CUE) in the 1997 rating decision has been raised by the record (see March 2008 statement), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Any assertion of CUE in the January 1997 rating decision pertaining to the service-connected chronic lumbar strain disability is not inextricably intertwined with the claimed earlier effective date for the grant of service connection for the chronic lumbar strain issue currently on appeal, which was an issue raised in the April 2009 notice of disagreement February 2009. The Veteran reported that her representative had submitted a claim in May 2007 seeking service connection for the chronic lumbar strain, and so, the issue of an earlier effective date for the grant of service connection for chronic lumbar strain disability is not inextricably intertwined with the assertions of CUE because the claims are determined on a different factual basis; therefore, the current earlier effective date for grant of service connection for chronic lumbar strain issue on appeal can be adjudicated without ultimate resolution of the CUE claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991); see also Flash v. Brown, 8 Vet. App. 332, 340 (1995) (earlier effective date claims and CUE "are different, mutually exclusive routes to the goal of determining an effective date"). FINDINGS OF FACT 1. The Veteran sustained a digestive disorder disease or injury during service, and experienced chronic symptomatology of a digestive disorder during service. 2. The Veteran experienced continuous symptoms of a digestive disorder since service separation. 3. The current digestive disorder, assessed as GERD (gastroesophageal reflux disorder) is related to service. 4. The Veteran initially filed a formal claim for VA disability benefits, a claim to reopen service connection for a back disorder, on March 5, 2008. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a digestive disorder, claimed as acid reflux, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). 2. Criteria for assignment of an effective date earlier than March 5, 2008 for the grant of service connection for chronic lumbar strain have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.400, 3.155 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In this case, a May 2008 VCAA letter on the issues of service connection for an acid reflux disorder and a chronic back pathology informed the Veteran as to how VA determines effective dates. The general norm is that, before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In this instance, however, the Board finds in favor of the Veteran, that is, service connection is warranted for the a digestive disorder, claimed as an acid reflux disorder. For this reason, the need to discuss whether VA has complied with its duties to notify and assist is obviated with regard to this issue. Additionally, inasmuch as the Veteran is asserting a claim for an earlier effective date for the grant of service connection for the chronic lumbar strain disability based on the general legal provisions governing assignment of effective dates, the Board finds that the provisions of the VCAA are not applicable because adjudication of such a claim turns on matters of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The United States Court of Appeals for Veterans Claims (Court) has held that, in such cases where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the basis of denial of the claim is the absence of legal merit, the duty to notify and assist is fulfilled where there is no reasonable possibility that additional evidence could aid in substantiating the claim. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Service Connection for a Digestive Disorder, Claimed as Acid Reflux Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran essentially contends that she incurred a disorder characterized by acid reflux in active service, and that this disorder has continued since then. Having considered all the evidence of record in light of the regulations noted above, the Board finds that the evidence for and against the claim for direct service connection for a digestive disorder, claimed as an acid reflux disorder, is at least in relative equipoise. Resolving doubt in the Veteran's favor, the Board first finds that the weight of the evidence demonstrates that the current digestive disorder, diagnosed as gastro-entitis in service and currently assessed as GERD, began during service. A review of service treatment records finds an April 1993 treatment report. The Veteran had sought treatment for nausea and diarrhea. The service clinician noted she had not picked up a prescription for medication following a recent treatment for those symptoms, due to a misunderstanding at the pharmacy. The service clinician assessed gastro entitis, placed her on quarters for 48 hours, and prescribed medication again. In November 1994, the Veteran sought emergency room treatment for sharp upper gastric pain, for which she reported the onset as being one week prior. The Veteran also reported nausea, vomiting and diarrhea. Within a week, the Veteran returned for treatment in November 1994 at the service medical center. She reported stomach pains of one week duration, in addition to the symptoms of gas and flatulence. The service clinician noted the emergency room visit of a week prior. The clinician assessed persistent gastritis and, possibly, esophagitis, rule out peptic ulcer disease, in addition to flatulence with possibly IBS (irritable bowel syndrome). Among other recommendations, the service clinician prescribed Zantac. On the August 1996 Report of Medical Assessment, prepared for her separation from service, the Veteran reported that she currently was taking Zantac. The Board could not find any other Report of Physical Examination that indicated it had been prepared for separation. A veteran is competent to report symptoms that she experiences at any time because this requires only personal knowledge as it comes to her through her senses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Veteran is certainly competent to report that she experienced acid reflux symptoms during her service. The Board finds that the Veteran is a credible witness, as her account of her experiencing chronic symptoms and seeking treatment, in particular in her actions of continuing to take the Zantac for her symptoms, to be credible, as her account is internally consistent, consistent with objective records, and plausible. Therefore, the Board finds that the Veteran incurred a digestive disorder in service and experienced chronic symptoms in service of a digestive disorder. The Board finds that the evidence is also in equipoise on the question of whether the Veteran experienced continuous symptoms of a digestive disorder post-service. The Veteran submitted VA treatment records dated April 1998 in which she reported during an annual gynecological evaluation that she continued to experience abdominal pain, unrelated to menstruation, with frequent episodes of nausea, vomiting, diarrhea, indigestion, and acid reflux. She had treated the acid reflux with Zantac with relief, though the symptoms had grown worse. She was assessed with chronic diarrhea and prescribed Pepcid, in addition to being advised of non-medical GERD (gastroesophageal reflux disorder) measures. An August 1998 treatment report indicated her "GI" symptoms had improved and that she continued to take Pepcid as needed. A March 1999 VA treatment report noted her GERD was stable. Also of record are treatment records from private practitioners and from treatment provided by service hospitals to the Veteran, as a dependent spouse of an active-duty member. She reported in April 2002 having a history of acid reflux, and sought treatment in May 2002 for worsening symptoms of reflux. By August 2003, she was prescribed Pepcid for her symptoms. At another service hospital, she reported in September 2004 that she was still taking Pepcid, though this over-the-counter medication was unavailable at that facility. The treating service clinician prescribed Prevacid as a substitute. Treatment reports dated in November 2005 and October 2007 again reported a history of GERD and that esophageal reflux was a current problem. A private clinician returned her to Zantac in April 2008, with an assessment of (GERD). In March 2010 the Veteran was afforded a VA esophagus examination. The VA examiner indicated he had reviewed the claims file. The Veteran reported she now took Prilosec for her recurring heartburn and that the heartburn had begun in the 1990's. At this examination she denied having nausea, vomiting, or abdominal pain symptoms. The VA examiner conducted an objective examination and assessed GERD, controlled with medication. The VA examiner noted she had been treated for epigastric distress in 1994, which had been thought to be gastritis. However, the VA examiner opined that her current heartburn disorder, now assessed as GERD, was less likely than not found while she was on active duty. While the VA examination report included a review of the claims file, the VA examiner did not appear to consider the Veteran's credible reports of experiencing symptoms of acid reflux in service, nor, that at separation, she was still taking the medication Zantac, which is credible evidence that her symptoms were continuing. Therefore, the Board finds this negative opinion to have limited probative value. While there is a current diagnosis of GERD, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current GERD disorder was incurred in service. While the Veteran sought medical treatment twice in service, in both 1993 and 1994, for nausea and diarrhea, the reports do not include a report of acid reflux, per se, though she was assessed in 1994 with persistent gastritis and, possibly, esophagitis. Though subsequent in-service medical treatment reports do not include complaints regarding her digestive system, she did report for the August 1996 Report of Physical Assessment for separation that she was still taking Zantac, which had been prescribed for her by the 1994 treating service clinician. Further, post-service treatment reports do include recurring complaints of acid reflux with nausea, diarrhea, and vomiting, and post-service assessments of GERD, though no in-service treatment provider reached that particular assessment. Nonetheless, by 2008, her private practitioner renewed her prescription for Zantac, following an assessment of her GERD, and this was the same medication she was placed on in service. In this particular case, the fact that essentially the same symptoms shown in service are present currently, that the Veteran has related her observations of experiencing the same symptoms since service, and that the Veteran is competent to report those observations is sufficient to place in equipoise the fact of whether the Veteran's current digestive disorder, claimed as an acid reflux disorder, is etiologically related to service. See 38 C.F.R. § 3.303(b) (subsequent manifestations of chronic disease in service at any later date are to be service connected); see also Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms that to substantiate a claim of service connection where such symptoms later formed the basis of diagnosis of disability). Resolving such reasonable doubt in the Veteran's favor, the Board finds that the Veteran's digestive disorder, currently assessed as GERD, began in service and is etiologically related to service, so that service connection for a digestive disorder is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date Criteria In this case, a January 1997 rating decision denied service connection for a low back disorder. The February 2009 rating decision on appeal granted service connection for chronic lumbar strain (claimed as chronic back pathology) and assigned an effective date for the grant of service connection March 5, 2008, the date of receipt of claim to reopen. The controlling effective date statute and regulation provide that, unless otherwise specified, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a) ; 38 C.F.R. § 3.400. In cases involving new and material evidence, where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). A "claim" for benefits is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p), 3.151, 3.155 (2011). Effective Date Analysis The Veteran contends that she is entitled to an effective date earlier than March 5, 2008 for the award of service connection for chronic lumbar strain. In a February 2009 statement, the Veteran reported that that she went to the RO in 2007 to pursue the filing of a claim to obtain service connection for her back disorder. Having reviewed the evidence of record, the Board finds that the Veteran's claim for an earlier effective date is without legal merit, and must be denied. To reiterate, the effective date of an award of service connection (compensation benefits) will generally depend on the date a claim for such benefits was filed, and the Board must consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date. The Board is "required to review all the communications in the file . . . that could be interpreted to be a formal or informal claim for benefits." Lalonde v. West, 12 Vet. App. 377, 381 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that, "[w]hile the Board must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde, 12 Vet. App. at 382 (holding that the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA). To determine when the Veteran's claim was received, the Board reviewed all communications in the file. Date-stamped as received March 5, 2008, was a letter from the Veteran's service organization representative. In the letter, the Veteran's representative specifically discussed a previous denial of an older claim by the Veteran for what was referred to as a back pathology. (While the letter clearly brought to the RO's attention a claim for CUE in a 1997 rating decision regarding a back pathology disorder, as the Board has referred this to the RO's attention for adjudication, the Board will refrain from any comment about the merits of that claim.) Nonetheless, the RO interpreted this letter, received March 5, 2008, as a claim seeking to reopen service connection for a back disorder; hence, an April 2008 letter from the RO to the Veteran notified her that an examination was to be scheduled for her. The Veteran's formal claim for VA disability benefits, dated March 5, 2008, is the earliest record in which the Veteran showed intent to apply for VA compensation (service connection) benefits following the January 1997 rating decision denial of service connection for a low back disorder. Therefore, the earliest possible effective date for the Veteran's claim is March 5, 2008, the date of filing of the formal claim to reopen service connection for a low back disorder. In a February 2009 statement, the Veteran reported that that she went to the RO in 2007 to pursue the filing of a claim to obtain service connection for her back disorder. In particular, she asserts that she signed the VA Form 21-22 on May 30, 2007, which designated the service organization to act on her behalf. Indeed, this VA Form 21-22, dated May 30, 2007, remains in the claims file, as does a letter from the same service organization, dated May 30, 2007, to the RO that only requested that the claim folder be sent to the service organization for its review. That letter, dated May 30, 2007, never stated why the service organization wanted to review the claims folder or what the service organization, or the Veteran, planned to do after review. The RO transferred the claim folder the next day, May 31, 2007. The Board finds that this May 30, 2007 correspondence from the service organization is not a claim, as the letter did not in any way request a determination of any entitlement, or articulate any intent to file a claim, including a claim for VA disability benefits, to reopen service connection for any disorder. See 38 C.F.R. § 3.1(p) (2011). The Board finds that the evidence indicates that the Veteran did not file a formal or informal claim for VA disability benefits (to reopen service connection for a low back disorder) in writing until March 5, 2008. The evidence of record does not support the Veteran's contentions of having filed a claim to reopen service connection for a low back disorder prior to March 5, 2008. The date of receipt of the claim to reopen is controlling under the applicable law. Even if entitlement to service connection had arisen earlier than March 5, 2008, the proper effective date for the reopened claim is March 5, 2008. 38 C.F.R. § 3.400(q)(1)(ii) . Although the Board is sympathetic to the Veteran's contentions regarding her intention to file an earlier claim to reopen service connection for a low back disorder, or have her representative file a claim for her, the evidence of record does not show that such a claim to reopen was filed prior to March 5, 2008. For these reasons, the Board finds that the criteria for an effective date earlier than March 5, 2008 for the grant of service connection for a chronic lumbar strain have not been met. As in this case, where the law is dispositive, the claim must be denied due to a lack of legal merit. Sabonis, 6 Vet. App. at 430 . ORDER Service connection for a digestive disorder, claimed as an acid reflux disorder, is granted. An effective date earlier than March 5, 2008 for the grant of service connection for chronic lumbar strain is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs