Citation Nr: 1337776 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-23 182 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for attention deficit hyperactivity disorder (ADHD). 2. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active duty for training from January 17 to July 22, 2003, and active duty service from August 2004 to November 2005, and from September 2008 to March 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled for a Board hearing in March 2013, but did not appear and did not indicate any desire to reschedule. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). The issue of entitlement to service connection for ADHD is addressed in the remand that follows the decision below. FINDING OF FACT The Veteran's GERD most nearly approximates disability manifested by some epigastric distress with pyrosis and regurgitation; it does not cause persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, and accompanying substernal or arm or shoulder pain, or similar symptoms. CONCLUSION OF LAW An increased (10 percent) rating for GERD is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 CF.R. §§ 3.102, 4.1, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, with respect to the increased initial evaluation claim on appeal, 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). In any event, VA's duty to notify has been satisfied through a notice letter dated in June 2010, which fully addressed all notice elements. This letter informed the Veteran of what evidence was required to substantiate his claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Additionally, the Veteran was provided a VA medical examination in June 2010. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination adequate for the purpose of evaluating the Veteran's GERD, as it involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, and an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis The Veteran contends that he is entitled to a compensable initial rating due to the severity of his service-connected GERD. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.21(a), 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Court in Fenderson held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court also discussed the concept of the "staging" of ratings, finding that in such cases, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-127. While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same, and in doing so the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, supra; see also Buchanan v. Nicholson, supra ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's GERD has been rated under the diagnostic criteria for hiatal hernia, Diagnostic code 7346. Under Diagnostic Code 7346, a 60 percent evaluation is warranted 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. 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. A 10 percent evaluation is warranted where two or more symptoms from the 30 percent evaluation are present, but at a lesser severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. Turning to the evidence of record, service treatment records dated in November 2008 show the Veteran was treated for GERD and obtained a refill prescription for Nexium. During this medical visit, the Veteran reported having received a diagnosis of GERD in 2005, at which time he began taking Nexium. Service treatment records dated in March 2009 show additional treatment for GERD, to include a prescription for Nexium. The Veteran switched from Nexium to the prescription medication Omeprazole in May 2009. In June 2010, the Veteran underwent a VA examination. At that time, the Veteran reported to the examiner that he had a history of acid reflux and began treatment in September 2008, although he could not remember any specifics. The Veteran reported that approximately three weeks previous, he began to have bad heartburn and stated that he was eating about a bottle of TUMS per day. The condition worsened and would not improve. The Veteran stated that he was initially seen and evaluated in the field and soon thereafter began taking Nexium, which he reported was effective and without side effects. With medication, the Veteran reported that he did not experience any dysphagia; however, he still experienced occasional, rare episodes of regurgitation and reflux, for which he used over-the-counter antacids as a supplement. Without medication, he reported pain during swallowing and substernal pain, although no pyrosis, epigastric or other pain. The report indicates a negative history for arm pain, hematemesis or melena, nausea or vomiting, hospitalizations or surgeries, esophageal trauma, or neoplasms. Upon physical examination the Veteran's abdomen was soft and non-tender, with normal bowel sounds and no evidence of organomegaly. An August 2012 VA treatment record shows that the Veteran had been taking Omeprazole with some effect. The record indicated that the Veteran wanted an increased dose due to continued symptoms, but reported an interaction with another medication he was taking. The Veteran continued to use antacids. Rather than increase the dose of the Veteran's current medication, he was prescribed a different medication, Protonix. With regard to lay evidence, the Veteran submitted several statements in support of his claim. In his November 2010 notice of disagreement, the Veteran stated that he took exception with the assigned noncompensable disability rating, as his GERD, if untreated, met the criteria for a higher evaluation. Without medication he "could not comfortably conduct even the slightest daily routine. The heartburn, regurgitation, and difficulty swallowing are unbearable." In his August 2012 substantive appeal, the Veteran stated that he takes 20 mg of Omeprazole daily in order to prevent the symptoms set forth in the diagnostic criteria for a higher evaluation. At times, "this is not enough and the dosage must be doubled, along with over-the-counter antacids, or [he] literally [is] unable to function due to severe heartburn[.]" The Veteran's "heartburn is so severe at times it will not let [him] swallow anything," and when he can swallow, "often times [he] is unable to keep it down." During such flare-ups, he has to supplement with over-the-counter medication to sleep, which he is sometimes unable to do. In an August 2012 supplemental statement, the Veteran reiterated several previous arguments, but added that the severity of his GERD symptoms is such that medication does not bring complete relief. He stated that he still experiences heartburn, belching, and difficulty swallowing. After a review of the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the present case presents evidence of limited recurrent epigastric distress with pyrosis or regurgitation sufficient to warrant a 10 percent evaluation for the entire initial rating period. The evidence for this period, however, does not show the presence of symptoms such as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, and accompanying substernal or arm or shoulder pain, so as to warrant the next higher, 30 percent evaluation. The Board finds that the criteria for a 30 percent evaluation have not been met at any point. 38 C.F.R. §§ 3.400, 4.114, Diagnostic Code 7346. In making this determination, the Board has considered all the evidence of record, inclusive of objective medical findings and lay statements. The Veteran is competent to address the nature and severity of his symptoms of GERD. Jandreau. With respect to credibility, the Board observes some inconsistencies in the Veteran's reporting of symptom severity and treatment history. For example, the symptoms reported by the Veteran in August 2012 are of significantly greater severity than those reported to the VA examiner in June 2010. Likewise, the reported effectiveness of his prescribed medication decreased during the same interval. Additionally, the Veteran inconsistently reported having first received a diagnosis of GERD in 2005 and 2008. See Caluza v. Brown, 7 Vet. App. 498 (1995) (the Board may consider such factors as facial plausibility, internal consistency, consistency with other evidence, self interest or bias, and statements made during treatment, when assessing credibility). While there is no clear explanation for the above discrepancies, the Board finds sufficient basis to accept as credible the Veteran's August 2012 statements regarding the severity of his GERD symptoms. The Board finds it reasonable to believe that the Veteran's condition might have worsened in the two-year interval between the VA examination and his later statements. Moreover, the Board observes that the June 2010 examination report noted that the Veteran had only recently begun taking Omeprazole and its effectiveness was yet unknown. As was shown by the August 2012 treatment record, Omeprazole was proven ineffective and the Veteran was prescribed yet another medication. The Board finds that the evidence warrants a 10 percent evaluation even though the June 2010 VA examination was negative for symptoms of epigastric pain, dysphagia, pyrosis, substernal pain, or arm or shoulder pain. The Board arrives at its conclusion after finding the Veteran's more recent assertions of pain and other symptoms to be reasonably credible to the extent of a 10 percent level of disability and then carefully weighing those statements against the available medical evidence An evaluation in excess of 10 percent, however, is not supported by the evidence. First, the objective findings are not reflective of a more severe disability. Specifically, there is no objective evidence of hospitalization or surgery, nor is there a history of symptoms such as vomiting, material weight loss, hematemesis, melena, persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, and arm or shoulder pain. Second, the record as a whole tends to weigh against the presence of such more severe disability. For example, there is no indication that the Veteran's GERD has either considerably or severely impaired his overall health. See Diagnostic Code 7346. As noted, the Board has considered whether staged ratings are warranted, but finds that they are not for application, as the evidence does not show that there are distinct periods of time where an evaluation higher than 10 percent for the Veteran's GERD is warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013). Accordingly, the Board finds that the evidence preponderates in favor of a 10 percent evaluation for GERD but against the next higher, 30 percent evaluation, for the entire initial rating period in question, beginning from April 1, 2010. 38 C.F.R. §§ 3.400, 4.114, Diagnostic Code 7346; Fenderson, supra. The Board has considered whether the Veteran's case should be referred for extra-schedular consideration. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The disability does not result in frequent hospitalization or in marked interference with employment. The symptoms of the Veteran's GERD, which include limited recurrent epigastric distress with pyrosis or regurgitation, are contemplated in the applicable rating criteria. Because the first prong of Thun has not been satisfied, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial disability rating of 10 percent, but no higher, for the Veteran's GERD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran claims entitlement to service connection for Attention Deficit Hyperactivity Disorder (ADHD). The record shows that the Veteran received a diagnosis of and treatment for ADHD during service. See, e.g., VA treatment records dated November and December 2009. The treatment records also note that the Veteran reported receiving a diagnosis of ADHD during childhood and stated that he was treated briefly with Ritalin. Id. In June 2010, the Veteran underwent a VA psychiatric examination in support of his claim. The VA examiner was instructed to evaluate the Veteran for service connection for several specified conditions, including ADHD. The examiner, however, stated that a request for such an examination was "inappropriate and in error[, as ADHD] is a developmental condition of childhood, and thus must have its origins in early childhood development[.]" The examiner cited to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, (DSM-IV) to support his conclusion. The examiner further stated that there is no such diagnosis as adult onset ADHD, and if ADHD is found, it "by definition, must precede military service and be present during childhood. There can therefore be no evaluation for service connection for [ADHD], given its developmental nature." With regard to developmental diseases, VA General Counsel has provided an opinion that service connection may be granted under certain circumstances. In VAOPGCPREC 82-90 (July 18, 1990), it was specifically noted that: Most diseases are considered acquired in nature. Others are recognized to be congenital, developmental or familial in origin. When any of the latter becomes the basis for a claim for service[]connection of a disability, VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted the claimant's military service. (In the case of some diseases, notably those first becoming manifest during service, guidance from medical authorities may be necessary regarding the actual time of inception.) Typically in these cases, entitlement to service-connection should turn on the question of whether manifestations of the disease in service constituted "aggravation" of the condition. That question must be resolved by applying the same stringent legal standards which are applicable in cases involving acquired disabilities. 38 U.S.C. § 353; 38 C.F.R. § 3.306. 56 Fed. Reg. 45711 (1990) As suggested by the VA examiner, General Counsel found that "VA adjudicators ordinarily are justified in finding that such disease, by its very nature, preexisted the claimant's military service[;]" however, when a developmental disease is noted during service, as here, there must also be consideration given to whether it was aggravated thereby. Id. Consequently, when the VA examiner indicated that such a disorder is "not exacerbated by service[]as it is a developmental disorder only[,]" he did not address the question of possible aggravation as contemplated by VAOPGCPREC 82-90. In order to obtain evidence on this point, a remand is required. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding, pertinent medical records, to include those related to the Veteran's diagnosis and treatment for ADHD during childhood. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to provide him the opportunity to obtain and submit those records for VA review. 2. Thereafter, refer the case to the examiner who conducted the June 2010 examination to further address ADHD. The entire claims file, to include any pertinent medical records contained in Virtual VA, 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 otherwise available must be printed and associated with the paper claims file for the examiner's review.) After reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's ADHD was first manifested during service. If not first manifested during service, the examiner should specifically indicate the medical probabilities that ADHD underwent a chronic worsening during any period of military service. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. References to the record should be made to support any conclusion. (If the examiner is no longer available or cannot provide an opinion without another examination, an examination should be scheduled.) 3. After the requested examination has been completed, the report should be reviewed to ensure that it complies with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, after completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefit sought on appeal is not granted, he should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs