Citation Nr: 1331964 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-29 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a low back disability. 2. Entitlement to an initial compensable evaluation for gastroesophageal reflux disease (GERD), prior to June 29, 2009. 3. Entitlement to an initial evaluation in excess of 10 percent for GERD, from June 29, 2009. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from November 1986 to February 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for a low back disability, and GERD. Noncompensable evaluations were assigned for each of the service connected disabilities. After the Veteran initiated his appeal, in a May 2009 rating decision, the RO granted a 10 percent evaluation for the low back disability, effective March 1, 2008, the effective date of service connection. In a November 2009 decision, the RO granted a 10 percent evaluation for GERD, effective from a September 29, 2009 VA examination showing increased disability. The issues regarding the Veteran's GERD have been altered to reflect new effective dates awarded in the analysis below. In March 2011, the Board denied the Veteran's claims for an increased initial ratings for a low back disability and GERD. In an Order in January 2013, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's decision on the issues on appeal for further proceedings consistent with its decision. The issue of entitlement to an initial evaluation in excess of 10 percent for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to June 29, 2013, GERD was asymptomatic, as it was well controlled by medications. 2. Since June 29, 2013, GERD has been manifested by moderate stricture of the esophagus. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for GERD, prior to June 29, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). 2. The criteria for an evaluation of 30 percent for GERD, from June 29, 2009, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7203, 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, private treatment records and VA examination reports have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2) . There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486 ; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Laws and Regulations GERD is not specifically listed in the rating schedule. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's currently diagnosed GERD is presently evaluated under Diagnostic Code 7346, as a hiatal hernia, by analogy. Diagnostic Code 7346 provides that pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, are rated 60 percent disabling. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, are rated 30 percent disabling. Two or more of the symptoms for a 30 percent rating, but of lesser severity, are rated 10 percent disabling. 38 C.F.R. § 4.114. Under Diagnostic Code 7203, GERD may be rated as stricture of the esophagus by analogy. Under Diagnostic Code 7203, an 80 percent scheduler rating is warranted where passage of liquids only is permitted, with marked impairment of general health. A 50 percent rating is warranted where there is a severe stricture, permitting the passage of liquids only. The minimum rating is 30 percent, and requires only that a moderate stricture be shown. 38 C.F.R. § 4.114 , Diagnostic Code 7203 (2012). Factual Background and Analysis A September 2007 service treatment record includes Veteran's reports of melena, heartburn and regurgitation. In a December 2007 report of medical history, the Veteran noted that he had heartburn in September 2007, and that he was taking Nexium for GERD, the Veteran did not report that he had active symptoms at that time. At a May 2008 VA examination, the examiner reviewed the claims file and recited an accurate medical history. The Veteran had an episode of spitting up blood in 1991. He was diagnosed with gastritis, and prescribed Nexium. A few years later, erosions of his esophagus were noted; peptic ulcer disease was diagnosed. He currently used Nexium daily, and his "symptoms are well controlled." He denied any heartburn, nausea, or vomiting. He did not use any over the counter medications. He denied blood in his stool or abdominal pain. On examination, his abdomen was soft, nontender, and nondistended on examination. Stable and asymptomatic peptic ulcer disease was diagnosed. In September 2009, the Veteran was again examined by VA. The examiner had the opportunity to review the claims file. He stated that he had been diagnosed with GERD in service after experiencing burning in his chest; he had this burning ever since, with progressive severity. Testing revealed esophageal inflammation. He had been switched from Nexium to Omeprazole, which he took twice a day. The Veteran complained that he experienced the sensation of having food "stop" in his chest once a week, and on one occasion two months prior he had vomited. Coughing and choking awakened him twice a week. He opined that his symptoms were decidedly worse than two years prior. There was no evidence of bleeding. It was noted that current treatment was not controlling his symptoms, which had been worsening. The Veteran had some degree of dysphagia over the past two months, once or twice a week. He had regurgitation once a week, and had vomited two months earlier. His general health was good, and the condition did not interfere with his employment. His weight was stable. The examiner diagnosed GERD noting that his last Esophagogastroduodenoscopy (EGD) demonstrated esophagitis and noting that the Veteran's symptoms were more pronounced over the last two to three months. The examiner further explained that the Veteran's symptoms were suggestive of esophageal regurgitation. March 1, 2008 to September 29, 2009 The record clearly notes that the Veteran had GERD during service, and he submitted a claim for service connection for GERD within a year of his discharge. Accordingly, the proper effective date for service connection is March 1, 2008, the day after the Veteran's separation from service. 38 C.F.R. § 3.400. While the Veteran was shown to have had active symptoms during service, service treatment records dated only two months prior to the Veteran's discharge include his reports of having had GERD symptoms but did not note that his symptoms were active at that time. Moreover, the Veteran's VA examiner noted in May 2008 that the Veteran was asymptomatic and the Veteran himself noted at that time that he did not have heartburn, nausea, or vomiting. He denied blood in his stool or abdominal pain. Thus, a noncompensable rating was appropriately awarded from March 1, 2008. At the September 2009 examination, the Veteran stated that his condition had been progressively worsening, particularly over the prior two to three months, and the VA examiner confirmed this in his diagnosis. Giving the Veteran the benefit of the doubt, a higher disability rating is appropriately considered from June 29, 2009, three months prior to the Veteran's examination. June 29, 2009 At the examination dated September 29, 2009, a definite and verifiable worsening of GERD symptoms is clearly established. The Veteran reports pyrosis (heartburn) and difficulty swallowing (dysphagia), with weekly regurgitation and even an episode of vomiting. These symptoms correspond to some of the listed evaluation criteria for both 10 and 30 percent ratings under Diagnostic Code 7346 for hiatal hernia. However, for the higher 30 percent disability rating, symptoms must cause an impairment of health. Here, the VA examiner has stated that the Veteran's general state of health was good, which prevents the Veteran's symptoms from most closely approximating a higher, 30 percent rating under Diagnostic Code 7346. The September 2009 VA examiner also noted that the Veteran's symptoms were suggestive of esophageal obstruction. Thus, the Veteran's symptoms may be considered under Diagnostic Code 7302. Under Diagnostic Code 7203 for stricture of the esophagus, the minimum rating of 30 percent requires only that a moderate stricture be shown. Comparing the noted manifestations to the listed criteria, it is clear that the criteria for a 50 percent or 80 percent rating are not more nearly approximated, as both require the passage of liquids only, and such is not demonstrated. However, the 30 percent criteria requires only that a moderate stricture be shown. The record contains no discussion of the degree of stricture created by the service-connected GERD, but there are notations of related symptoms such as dysphagia (trouble swallowing) of solid foods. The examiner did not specifically attribute dysphagia to esophageal obstruction but did note that symptoms suggested such obstruction. Resolving the benefit of the doubt in the Veteran's favor, his manifestations approximate moderate stricture and a 30 percent rating under Diagnostic Code 7203 is warranted. While there are some Diagnostic Codes pertaining to disorders of the digestive which may not be considered separately, Diagnostic Code 7346 and Diagnostic Code 7302, are not amongst those codes. 38 C.F.R. § 4.113; 38 C.F.R. § 4.114 (2012). The next question, then, is whether the disability may be rated 30 percent under Diagnostic Code 7203 while retaining a separate 10 percent rating under Diagnostic Code 7346 from June 29, 2009. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Evaluation of the same manifestation under different diagnoses are to be avoided. Because the various manifestations of service-connected GERD cannot be parsed out among the disorders underlined in the Diagnostic Codes, and noting that the Veteran's disability is assigned a rating by analogy, a single disability rating that best represents the overall disability picture must be used. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) at 261. Accordingly, a 30 percent rating under Diagnostic Code 7203 is the only schedular rating that may be assigned. The evidence shows that the Veteran's service-connected GERD results in dysphagia, regurgitation once a week, vomiting and esophageal obstruction. The medical record noted that the Veteran's general health was good, and that the condition did not interfere with his employment. The rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected GERD disability is adequate, and referral for extraschedular considerations not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial compensable evaluation for gastroesophageal reflux disease (GERD), prior to September 29, 2009 is denied. Entitlement to an initial evaluation of 30 percent, but no higher for GERD, from September 29, 2009 is granted. REMAND As noted in the Court's January 2013 Memorandum Decision, the claim file contains evidence of neurological symptoms associated with the Veteran's low back disability. In his May 2008 VA examination, the VA examiner noted that the Veteran described several episodes of shooting pain down both legs, which indicates neurological symptoms. The VA examiner did not, however, provide an opinion as to whether the neurological symptoms are due to his low back disability. The VA examination is therefore inadequate and a new examination must be afforded to the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any neurological disorder found on examination is related to the Veteran's service-connected low back disability. The VA examiner is to describe: a). Range of motion of the lumbar spine in degrees of forward flexion and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; b). Any objective neurological abnormalities of the lumbar spine and the level of severity of those abnormalities; and, c). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes. The Veteran's file must be made available to the VA examiner. 2. Then, adjudicate the claim for rating higher than 10 percent for a low back disability-to include consideration of neurological abnormalities related to the Veteran's low back disability, if shown. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs