Citation Nr: 1402062 Decision Date: 01/15/14 Archive Date: 01/31/14 DOCKET NO. 09-36 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating higher than 10 percent for service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to April 1988, and from October 2006 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In that decision, in pertinent part, the RO granted service connection for gastroesophageal reflux disease (GERD), and assigned a zero percent (noncompensable) evaluation, effective from January 5, 2008. Salt Lake City, Utah. In a February 2012 rating decision, the RO assigned a 10 percent disability rating for GERD effective January 5, 2008. The claim for an increased rating remains in controversy because that is not the maximum possible rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). As part of his September 2009 substantive appeal (see VA Form 9), the Veteran requested to have a hearing, to be conducted by a Veterans Law Judge at the RO. He later withdrew this request in October 2012. See VA Form 21-4138. As part of the July 2008 rating decision, the RO also denied claims seeking service connection for hearing loss, a bladder condition, and for depression. The Veteran perfected appeals as to these three claims. See VA Form 9, dated in September 2009. The Veteran withdrew the hearing loss claim in October 2012. See VA Form 21-4138. As to the claims seeking service connection for a bladder condition and for depression, these were granted by the RO in February 2012. Thus, they are no longer before the Board for appellate consideration. The Board also observes that as part of a November 2013 letter the Veteran's accredited representative seemed to raise an issue concerning entitlement to service connection for Zenker's diverticulum, secondary to the service-connected GERD disorder. This issue 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. In adjudicating this claim, the Board notes that certain records from the claims file have been stored electronically as part of the Virtual VA paperless claims processing system. With regard to the Virtual VA paperless claims processing system, instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide an appellant's claim for benefits. While the majority of records from this claims file are associated with the physical claims file, because some of the documents were added to the electronic version of this file as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board has reviewed all electronic and paper records associated with this file. FINDING OF FACT For the entire initial rating period from January 5, 2008, the competent medical evidence of record indicates that the Veteran's service-connected GERD has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis or regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an initial disability rating higher than 10 percent for the service-connected GERD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A,5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.31, 4.114, Diagnostic Code 7346 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). Further, upon receipt of a claim for service connection for a disability, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim for service connection has been substantiated, and any defect in the notice regarding that claim was therefore not prejudicial to the claim. See Dingess, 19 Vet. App. at 491. In such cases, where the veteran then files a notice of disagreement (NOD) with the initial rating and/or the effective date assigned, he/she has initiated the appellate process and different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in sections 7105(d) and 5103A of the statute. Id., see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); 38 U.S.C.A. §§ 5103(A), 7105(d). In this case, the notice obligations set forth in sections 7105(d) and 5103A of the statute were met when the RO issued a July 2009 Statement of the Case (SOC) in response to the Veteran's October 2008 NOD with the initial rating assigned. The SOC provided citations to the pertinent regulations involved, a summary of the evidence considered, and notice of the decision and the reasons for the decision. 38 U.S.C.A. § 7105(d). The Veteran has not argued that there was any deficiency with regard to the notice requirements. Accordingly, the Board concludes that, in this case, the RO met the notice obligations set forth in sections 7105(d) and 5103A of the statute. VA has also satisfied its duty to assist the Veteran with development of evidence. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any unobtained medical records. An August 2012 VA orthopedic examination report shows that the Veteran claimed to be in receipt of Social Security Administration (SSA) benefits since incurring a stabbing injury. As a result of this cervical spine trauma, the Veteran became a quadriplegic. See VA general medical report, dated in August 2013. At present, the SSA records have not been obtained. VA must obtain SSA records, where relevant, if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations "giv[ing] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim); see also Baker v. West, 11 Vet. App. 163 (1998). Here, the Veteran has not indicated that the SSA records are pertinent and the record does not otherwise indicate that they are relevant in the instant appeal. Thus, the record shows that the SSA records are not pertinent in the instant appeal. In addition, as discussed below, the Veteran is shown to have been afforded several VA examinations with respect to the issue on appeal. 38 C.F.R. §3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate for rating purposes because they provided the necessary clinical findings to evaluate the disability under the rating criteria. Accordingly, the duty to assist the Veteran with the development of evidence pertinent to his claim seeking a higher initial rating for his service-connected GERD has been satisfied. Laws and Regulations/Factual Background/Analysis The Veteran essentially contends that an initial disability rating in excess of 10 percent should be assigned for his service-connected GERD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Id. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where, as here, a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In May 2012 correspondence from the Veteran's accredited representative, it was argued that a 30 percent rating should be assigned as there are reports of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which is productive of considerable impairment of health. The dates of these "reports" were not provided by the representative. In the July 2008 rating decision, the RO granted service connection for GERD and assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7346, effective January 5, 2008. When, as here, the Rating Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As noted, the disability evaluation was later increased to 10 percent, with the effective date remaining the same. The Board finds no more appropriate criteria to rate this disability. Under Diagnostic Code 7346, a 10 percent rating is to be assigned for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114. A 30 percent rating is assigned for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. Id. During a June 2008 VA examination, the Veteran reported being treated for many years for substernal burning and sour taste in his mouth. The Veteran denied vomiting and hematemesis or melana. He was taking Pantoprazole with good response and no side effects. He also denied trouble with diarrhea and constipation. Examination showed the Veteran's weight to be stable, with no sign of anemia. GERD, without complications, was diagnosed. The report of a November 2009 VA esophagus and hiatal hernia examination shows that the Veteran complained of longstanding symptoms of substernal burning and a sour taste in his mouth. He also complained of daily burning, which was aggravated in the laying position. He denied having chest pain or epigastric pain other than a burning sensation in his right epigastric region. He did complain of occasional dysphagia to solids, happening two to three times a week. He denied hematemesis and melena. GERD was diagnosed; examination noted that anemia was not present and that weight gain or loss was not demonstrated. The report of a VA esophageal conditions examination, dated in August 2013, documents the Veteran's reported history of infrequent episodes of epigastric distress, pyrosis (heartburn), reflux, and regurgitation. The report added that upper endoscopy examination in June 2013 revealed Zenker's diverticulu. The examiner added that the Veteran's esophageal conditions did not impact his ability to work. Neither anemia, weight loss, nor substernal arm or shoulder pain was reported. GERD was diagnosed. There is evidence that the Veteran has had dysphagia (yes in November 2009, no in June 2008 and August 2013), pyrosis (yes in June 2008, November 2009, and August 2013), and regurgitation (yes in August 2013, no in June 2008 and November 2009) during the course of his claim and appeal. He has also reported substernal pain in June 2008, but denied this in November 2009 and August 2013. However, the preponderance of evidence shows that his GERD does not result in considerable impairment of health. That his GERD does not result in considerable impairment of health is shown by the findings in the August 2013 examination report that his esophageal conditions (GERD and Zenker's diverticulum) did not impact the Veteran's ability to work. Also, the November 2009 VA examination report noted that the Veteran's general state of health was within normal limits. Moreover, during the June 2008 VA examination the Veteran reported taking Pantoprazole with good response and no side effects. The record also shows that the Veteran had not reported material weight loss and anemia is clearly not present. At no time during the course of this appeal has the Veteran's service-connected GERD been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The Veteran's GERD has two or more of the symptoms listed in the criteria for a 30 percent rating but shown by the preponderance of evidence to be of lesser severity than what is indicated for the 30 percent rating. Hence, this condition approximates the criteria for a 10 percent rating but has not approximated the criteria for a higher schedular rating for any period of time on appeal. For the reasons stated above, the Board finds that the preponderance of evidence is against assigning an initial rating higher than the 10 percent already assigned, for any period of time on appeal, for disability due to GERD. Therefore, his appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected GERD. Complaints of epigastric distress and substernal pain are specifically contemplated by the rating criteria. As discussed above, there is a higher rating available under the applicable diagnostic code, but the Veteran's service-connected disability now being evaluated is not productive of the manifestations that would warrant the higher rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial disability rating higher than 10 percent for GERD is denied for the entire period on appeal. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs