Citation Nr: 1327438 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 08-12 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected gastroesophageal reflux disease (GERD) with Barrett's esophagus and dysplasia. 2. Entitlement to an increased rating, in excess of 30 percent (excluding a period of temporary total rating), for service-connected gastroesophageal reflux disease (GERD) with Barrett's esophagus and dysplasia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from July 1962 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Denver, Colorado, dated August 2007, with respect to the claim for entitlement to an increased rating for service-connected GERD and January 2008, with respect to the claim for service connection for sleep apnea. The Veteran testified at a June 2011 Travel Board hearing at the Denver, Colorado, RO. A transcript of the hearing is of record and was reviewed. The Board subsequently issued a decision in October 2011 denying the claim for service connection for sleep apnea and remanded the claim for a higher rating for the Veteran's GERD. The Veteran appealed the decision denying his claim for service connection for sleep apnea to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a February 2013 Memorandum Decision, the Court vacated the Board's October 2011 decision denying the claim for sleep apnea and remanded this claim to the Board for further development in compliance with directives specified. The issue of entitlement to an increased rating, in excess of 30 percent, for service-connected GERD with Barrett's esophagus and dysplasia will be addressed in this decision. However, to comply with the directives of the Court's Memorandum Decision, the Board is remanding the claim for sleep apnea to the RO via the Appeals Management Center (AMC). FINDING OF FACT The Veteran's GERD is productive of considerable impairment of health with gastrointestinal disturbance including regurgitation; without symptoms of material weight loss, and hematemesis or melena with anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The Veteran's GERD has not met the criteria for the next higher, 60 percent rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 CF.R. §§ 4.1, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159. VCAA notice consistent with 38 U.S.C.A. § 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; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b). The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in January 2007. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. In this letter, the Veteran also received notice pertaining to the downstream disability rating and effective date elements of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, adequate VA examination and opinion as well as statements from the Veteran and his representative. The Veteran was afforded VA examination in September 2012 to address the severity level of the Veteran's service-connected disability. To that end, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2. The Board finds that the VA examination is more than adequate, as it was predicated on a full reading of the VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Likewise, the Board finds that there was compliance with its October 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As noted above, the Veteran was afforded a personal hearing before the undersigned in June 2011. In this regard, the Board notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the 2011 Board hearing. Entitlement to an Increased Rating for GERD The Veteran contends that his GERD should be granted a higher rating than the 30 percent evaluation already assigned. However, as discussed below, there is no substantive indication from the record (beyond the Veteran's unsubstantiated assertion of entitlement to a higher benefit) that such a higher rating is warranted, and hence the appealed claim is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there have been changes in the severity of the disability, the Board will need to "stage" the rating to compensate the Veteran for this, irrespective of whether the rating for the disability is an established rating versus initial rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Based on in-service treatment records, a March 2004 rating action granted service connection for GERD, assigning a 10 percent disability evaluation effective from March 2003. The Veteran filed his current claim in November 2006. In an August 2007 rating action, the RO increased the disability evaluation to 30 percent, effective the date of the claim. The Veteran has continued his appeal of this claim. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible ratings for these disabilities, for all times at issue, unless he expressly indicates otherwise). The Veteran's GERD is appropriately rated under the rating code for hiatal hernia, as the code under which disabling symptoms of GERD are addressed. Under Diagnostic Code 7346, hiatal hernia, a 30 percent evaluation 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; with two or more symptoms for the 30 percent evaluation of less severity, a 10 percent evaluation is assignable. A 60 percent evaluation is in order for 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. The term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. Id. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. Id. As explained below, based on the medical examination findings, treatment records, and the Veteran's own assertions at these examinations, it is apparent that the Veteran's GERD has had limited symptoms over the entire rating period. Complaints early within the rating period were reflective of post-surgical symptoms, but without significant persistently recurrent epigastric distress and without severe impairment of health. More recently, as reflected in the Veteran's own assertions and medical findings upon December 2011 and September 2012 VA examinations, the Veteran has experienced better control of his GERD, so that the rating criteria for even a 10 percent evaluation have not been met. The Veteran was afforded VA examinations addressing his GERD in March 2007, December 2011, and September 2012. The examiners reviewed medical records and noted the Veteran's reported history of symptoms. At the March 2007 examination the Veteran reported that he underwent esophageal resection in January 2007 which the examiner later noted was due to risk for cancer. He admitted that his reflux had improved but still had a significant problem when lying down. He found it necessary to eat multiple small meals to avoid severe diarrhea. He experienced diarrhea half of the time, regardless. He stated that half of his stools were formed. He had lost nearly 30 pounds since his surgery, but this had stabilized. His weight was reported to be 171 pounds. (The Board notes that VA outpatient treatment records in 2006 and 2007, prior to the surgery show that the Veteran's weight generally was around 186 to 190 pounds, and that he lost 20 pounds in the three weeks following the surgery.). He tried not to eat three hours before he slept. On examination of the abdomen, he had a residual Y-shaped scar from the surgery. There were no ulcerations or tenderness noted. There was normal sensation. There was no abdominal organomegaly or palpable masses. The Veteran presented testimony in June 2011, where he reported that his symptoms included pain with reflux, burping, gas, and sleep impairment. He took DiGels to neutralize stomach acid. He tried not to eat past five o'clock. He had a bowel movement five to six times a day. On trips, he had to be aware of the location of a bathroom. He felt that his symptoms had worsened since his surgery. He took six different medications and saw his VA physician regularly. At the December 2011 VA examination for compensation purposes, the examiner noted the Veteran's medical history. The Veteran reported that he continued to have symptoms when lying down, which required him sleep with his head elevated. He had to chew his food well to avoid dysphagia. He reported 3-4 loose stools daily. He was not taking any medication for diarrhea. His weight had been stable for the previous four years and nutrition had been normal. The anemia that was noted postoperatively had been corrected. His Hct and Hgb had been maintained with iron supplements. His medications included Protonix, Ranitidine, and iron. He weighed 174 pounds. He was well-nourished. The scar was noted to be non-tender. The abdomen was non-tender. He had normal bowel sounds. At the September 2012 VA examination, the Veteran's surgical history was outlined including the most recent surgery (esophagectomy) in 2007. The Veteran reported that he developed post-vagotomy diarrhea with 4 to 6 loose stools daily; that he briefly tried Imodium and although it helped, he did not continue with the medication. There had been no other specific treatment. Currently, he reported that he had four semi-formed stools daily. There was no bleeding. He reported weight loss following the 2007 surgery (from 185 to 170 pounds), but that his weight for the last four years had been between 164 and 170 pounds. He reported having dysphagia in 2008, found to have an anastomotic stricture, underwent dilation at that time, and upon 2009 enodoscopy there was no further need for dilation. The Veteran stated that his reflux had worsened after the 2007 procedure and required an increase in medication. He continued to sleep with his head elevated at 8-inches. His medication included Protonix, Sucralfate, and Ranitidine. Nutrition was noted to be normal, and the anemia noted in the postoperative period had been corrected and resolved. He was no longer taking oral iron. He was able to perform all activities of daily living including eating, cooking, dressing, undressing, driving, writing, bathing, and toilet hygiene. He was well nourished. The abdomen was non-tender. He had normal bowel sounds. There was no hepatosplenomegaly or masses. He weighed 164 pounds. Other signs and symptoms were reported to be infrequent episodes of epigastric distress, reflux, and regurgitation with no vomiting, weight loss, nausea, hematemesis, or melena. The Veteran's esophageal stricture was noted to be asymptomatic. The diagnosis was GERD with associated Barrett's esophagus with focal high grade dysplasia. The Veteran's complaints regarding the severity of his disorder have been duly considered, including as expressed during the course of his evaluation and treatment. While such symptoms are often inherently subjective, the Board looks also to whether these symptoms are objectively confirmed or clinically substantiated when examined. And while some have been, others have not, and those that have been are sufficiently contemplated by his existing rating. In this regard, treatment records contained within the claims file are generally consistent with the history and findings noted upon the VA examinations. The Board notes that for the most part, the Veteran's assertions made at these examinations have mirrored the objective evidence of record. Although at his hearing and at least on examination, he reported that his symptoms have worsened since his surgery, as reported above, the actual objective findings are not necessarily representative of this. As noted above in March 2007, he reported that his symptoms had improved and only complained of reflux on lying down. Furthermore, VA outpatient records dated in January 2008 also relate that he has continued an active lifestyle. Although the various lay statements of record from friends and family describe how the Veteran's social activities have been substantially curtailed due to symptoms which the individuals relate to the Veteran's service-connected gastrointestinal disorder, such considerations are only one factor for consideration in evaluating the Veteran's GERD. And, when compared with the objective findings of record, the Board finds that severe impairment of health due to the Veteran's gastrointestinal disorder is simply not demonstrated in the record. The Veteran's weight has remained stable over the last several years; there is no evidence of vomiting, hematemesis or melena. As noted by the most recent examiner, any post-2007 surgery anemia has resolved. The Veteran is described as well-nourished. Moreover, the record does not show any other symptom combination that is productive of severe impairment of health. The Veteran was found on most recent examination to be able to perform all activities of daily living including eating, cooking, dressing, undressing, driving, writing, bathing, and toilet hygiene. Hence, while the Board has weighed the Veteran's assertions, as well as the assertions of the other lay persons, as cognizable lay evidence, these assertions do not support a higher disability evaluation when viewed along with the objective evidence of record, and hence ultimately do not support the claim on appeal. The Board finds that the current 30 percent evaluation which contemplates persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is appropriate in this case. Although the Board has considered whether other diagnostic codes may provide a basis for a higher rating, the Board does not find any other code to be applicable in the instant case. See 38 C.F.R. § 4.114. The Board has also considered whether the Veteran's gastrointestinal disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). VA regulations require that unless the symptoms and/or degree of impairment due to a service-connected disability can be distinguished from any other diagnosed disorders, VA must consider all symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Overall, the occupational and social impairment caused by the Veteran's gastrointestinal disability, as described above, are accounted for by the rating criteria. Thus, the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to an increased rating in excess of 30 percent for GERD is denied. REMAND The Veteran also claims that service connection is warranted for sleep apnea. The Veteran claims that he underwent a surgical procedure during service, in which, a tumor was removed from his throat. He states that a private physician has indicated that his sleep apnea is etiologically related to this surgery. In the alternative, the Veteran claims that his sleep apnea is secondary to his GERD. The Court found that VA efforts to obtain service treatment records were insufficient. The Court noted that VA sought hospitalization records of the claimed in-service surgery through the National Personnel Records Center. However in making this request, VA did not make a specific request for "clinical records" or "inpatient records." The Court pointed out that according to M21-1 "clinical records" or "inpatient records" may be needed where there is no documentation or insufficient documentation concerning hospitalization. The Veteran has reported that in July 1966, he underwent surgical removal of a throat tumor aboard the USS Haven. The Court indicated that VA, in making a request for service treatment records should specifically request "inpatient records" or "clinical records" that contain the name of the facility, as well as the month and year of hospitalization. The Court also found that the Board did not adequately explain why examination and opinion were not necessary in this case. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Court pointed out that the Veteran has stated that a private physician indicated that his sleep apnea is attributable to scar tissue from his in-service throat surgery. The Court stated that this may satisfy the low threshold in McLendon. Therefore, VA examination and opinion are needed. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the National Personnel Records Center and request that it undertake a search for additional service medical records, including inpatient records for the Veteran as provided in M21-1, Part III, paras. 4.01(b)(2)(b) and 4.03(b). The RO/AMC should specifically request "inpatient records" or "clinical records" from USS Haven and USS Berkeley in July 1966 that pertain to the Veteran's alleged throat surgery. 2. Then, schedule the Veteran for an appropriate VA examination to determine whether sleep apnea is related to his military service or to his service-connected GERD. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: a). whether it is at least as likely as not that sleep apnea had its onset in, or is otherwise etiologically related to, the Veteran's active duty service; b). whether it is at least as likely as not that sleep apnea was proximately caused by the Veteran's service-connected GERD; c). whether it is at least as likely as not that sleep apnea is aggravated (chronically worsened) by the Veteran's service-connected GERD. In doing so, the examiner must acknowledge the Veteran's report of in-service throat surgery. A complete rationale for any opinion expressed should be provided. It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs