Citation Nr: 1420067 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 09-14 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for chronic subjective dizziness and vertigo. 2. Entitlement to an initial rating higher than 10 percent for laryngopharyngeal reflux. ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from September 1974 to September 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2012, the Board remanded these claims to afford the Veteran VA examinations. The Veteran was afforded VA examinations in October 2012 and November 2012. With respect to the subjective dizziness claim, the Board found that additional expert opinion from the Veterans Health Administration (VHA) was required which cured any evidentiary deficit with respect to the VA examiner's opinion. As such, the evidence indicates that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In January 2014, the Board requested an additional opinion from a VHA medical expert in order to clarify the nature of the Veteran's dizziness and vertigo disorder and the potential relationship of her disorder to service. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(d) (2013). That development having been completed, the claims are now ready for appellate review. The Board notes that this appeal originally included entitlement to service connection for a neurological disorder of the right and left foot and diverticulosis of the colon. These issues were granted in a June 2013 rating decision, and as such, are no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not indicated that she is unable to secure or follow substantially gainful employment due to her laryngopharyngeal reflux. Accordingly, the Board finds that Rice is not applicable in this case. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, the Veteran's chronic subjective dizziness and vertigo was incurred during service. 2. The Veteran's laryngopharyngeal reflux is manifested by recurrent epigastric distress with symptoms of dysphagia, pyrosis, and substernal pain, but it has not been shown to be productive of considerable impairment of health. CONCLUSIONS OF LAW 1. Service connection for chronic subjective dizziness and vertigo is established. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for an initial rating higher than 10 percent for laryngopharyngeal reflux have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting the Veteran's claim for service connection. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA for this issue, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. The Veteran's claim for an increased rating arises from her disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice for this issue is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which she authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records (STRs) and post-service medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA records have also been reviewed. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims. II. Entitlement to Service Connection for Chronic Subjective Dizziness and Vertigo The Veteran seeks entitlement to service connection for chronic subjective dizziness and vertigo. She asserts that she developed symptoms of dizziness and vertigo during service and continues to experience the same symptoms. Applicable Laws The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a 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. The Persian Gulf War presumption of service connection does not apply if symptoms are medically attributed to a diagnosed (rather than an undiagnosed) illness. See VAOPGCPREC 8-98 (Aug. 3, 1998), 63 Fed. Reg. 56703 (1998); see also Neumann v. West, 14 Vet. App. 12, 22-23 (2000). As the Veteran's claimed disorder is diagnosed, the presumptions of service connection for the Gulf War are not applicable. In determining whether service connection is warranted for a disability, 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). Facts The Veteran's service records were reviewed. STRs document multiple complaints related to dizziness and vertigo, such as non-specific vertigo (June 1991), vertigous episodes with associated nausea (September 1993) and a fleeting sense of dizziness for years (November 1995). Post-service, the Veteran has sought treatment for her symptoms for many years. In December 2004, the Veteran underwent ocularmotor testing, which was normal. The examiner noted that the Veteran might have reoccurring benign paroxysmal positional vertigo, not present at the time. In May 2006, the Veteran complained that her vertigo had worsened and was occurring at rest and with turning. Impression was disequilibrium/balance disturbance. The Veteran underwent a VA otolaryngology examination in October 2006. She reported dizziness and vertigo since 1991. In February 2007, the Veteran was seen in the otolaryngology clinic. She reported a dizzy feeling with turning her head and moving her eyes and that it had recently become more frequent and persisted longer. Assessments included vertigo. A July 2007 neurology follow up note indicates that magnetic resonance imaging (MRI) of the brain was within normal limits. Assessment was headache syndrome. It was noted that she had a history of migraines with various neurological symptoms, including prominent vertigo and fatigue. Extensive neurological testing was accomplished with no structural brain or spine disease. She was started on Effexor. In the Veteran's April 2009 VA Form 9, she reported that dizziness and vertigo was a longstanding issue from 1991 or earlier, and it had worsened since retirement. She reported that she was diagnosed with migraine variant as the cause, and the dizzy sensation disappeared for about a year following the use of Effexor. In 2008, the symptoms returned and medication was increased. In September 2012, the Board remanded this claim to obtain a medical opinion. The Board noted that the evidence of record showed complaints of dizziness in service and continuing to date; however, it was unclear whether the Veteran had a confirmed diagnosis of vertigo, as the October 2006 examiner specifically stated that the Veteran had no pathology to render a diagnosis. The Veteran was afforded a VA examination in November 2012. She reported episodic dizziness with turning her head, and later, with turning her eyes. She stated that eventually she started having symptoms without turning her eyes or head. She was noted to have a history of vertiginous migraine and ocular migraines. The Veteran reported that Effexor improved her symptoms, but that she did not experience headaches with her episodic dizziness. She reported nauseas with the dizziness. The examiner stated that the Veteran had symptoms of episodic vertigo while she was in active service, but that she does not have a confirmed diagnosis of vertigo. The examiner stated she is suspected of vertiginous migraine variant, post-service. In December 2012, a private treatment record indicated that the Veteran had dizziness, but no history suggesting vestibular syndrome and no positional component. The physician stated that they were most likely vertiginous headaches. An addendum opinion received in May 2013 indicated that the Veteran did not meet the criteria for a vertiginous migraine and stated that she has subjective sensation without an established diagnosis. Additionally, in June 2013, a VA examiner stated there was no clear diagnosis of vertiginous migraine established. The Veteran submitted articles regarding chronic subjective dizziness, and reported that dizziness is her primary complaint, not vertigo. The Board requested a specialist's opinion in January 2014. In February 2014, an opinion was received. The specialist stated that the Veteran's diagnosis was chronic subjective dizziness and occasional mentions of vertigo. The specialist noted that the symptoms were first reported in June 1991, with possible onset 3-4 years earlier. It was noted that there was no evidence of an undiagnosed Gulf war illness. The specialist noted that the Veteran's symptoms appear to be a separate complaint, unrelated to her service-connected migraine headaches. Analysis Initially, the Board notes that the Veteran has a current diagnosis of chronic subjective dizziness and vertigo. See February 2014 specialist's opinion. See also Jeffrey P. Staab, M.D., M.S., presentation entitled Chronic Subjective Dizziness, Update 2010. As such, element (1) set forth under Shedden, current disability, has been satisfied. See Shedden, supra. Although not diagnosed with chronic subjective dizziness and vertigo at the time, the Veteran did seek treatment during service for symptoms. Service records document multiple complaints related to dizziness and vertigo, such as non-specific vertigo (June 1991), vertigous episodes with associated nausea (September 1993) and a fleeting sense of dizziness for years (November 1995). As such, the evidence demonstrates that the Veteran suffered from these symptoms during her period of active duty service. Shedden element (2) has been satisfied. See Shedden, supra. In the February 2014 specialist's opinion, the physician indicated that the Veteran has been experiencing the same symptoms of dizziness and vertigo since her time in service. Accordingly, the Board finds that element (3) under Shedden, nexus, has been satisfied. See Shedden, supra. The Board finds, for purposes of this decision, that the complaints of dizziness and vertigo in service, and the subsequent manifestations of this same disorder post service, as related by the Veteran's lay statements and established by VA examination reports and private medical records and the VHA examiner opinion, raise a reasonable doubt as to the initial onset of the Veteran's chronic subjective dizziness and vertigo. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). In resolving all reasonable doubt in the Veteran's favor, the Board determines that chronic subjective dizziness and vertigo was shown in service and thus warrants a grant of service connection for that disability. III. Entitlement to an Initial Rating Higher than 10 Percent for Laryngopharyngeal Reflux The Veteran seeks an initial increased rating for her laryngopharyngeal reflux. She asserts her disability is more severe than what is represented by a 10 percent rating. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran's treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Service connection for laryngopharyngeal reflux was established in a March 2006 rating decision, at which time a noncompensable rating was assigned, effective October 2004. In an April 2007 rating decision, the Veteran's rating for laryngopharyngeal reflux was increased to 10 percent, effective October 2004. The Veteran's laryngopharyngeal reflux is rated analogously under 38 C.F.R. § 4.114a, Diagnostic Code 7346, which pertains to hiatal hernia. Under Diagnostic Code 7346, a 60 percent rating contemplates a level of impairment that includes 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 rating is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted when there is two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. Medical records indicate that in July 2006, the Veteran complained of reflux, but indicated she had normal appetite and no dysphagia. The Veteran was afforded a VA examination in October 2006. She reported radiating pain and a burning sensation in her chest, which radiated out to her arms and up to her ears. She also reported occasional regurgitation. Examination noted that the Veteran's weight was 218.6 pounds, and that she was well nourished, in no acute distress and had a normal nutritional status. Examination revealed erythema and edema in the post arytenoid area. She had normal speech. She was diagnosed with laryngopharyngeal reflux with a subjective factor of a burning sensation in the throat. In June 2007, the Veteran described having an ache that was mild and occasionally progressed to severe pain into her neck, back and arms. She reported that initially medication controlled the symptoms, but recently, the symptoms were not controlled. It was noted that the Veteran had milder symptoms about twice a week and more severe symptoms about twice a month. The Veteran reported using Tums or drinking milk to improve her symptoms but that they would usually return. It was noted that her weight was stable. Treatment notes from November 2007 indicate the Veteran continued to complain of symptoms such as a sense of a lump in her chest and discrete pain that would radiate into her back and upward. She reported that she used Tums and milk to relieve her symptoms. She was diagnosed with atypical chest pain and it was noted that her symptoms were due to hyperalgesia of the esophagus/functional esophageal pain. The Veteran underwent an upper gastrointestinal endoscopy in January 2008. She reported heartburn and dysphagia. The impression was a normal esophagus, normal duodenum and a single gastric polyp. The Veteran submitted a statement in January 2008. She reported that at its worst, untreated, she has pain in her chest area that feels like someone was, "putting a stake through" her chest, and it radiated up her neck to her ears and to her arms. She noted that when treated, it tended to be a burning sensation in mid-chest, front to back, of varying severity. She also reported a recurrent sense of fullness when swallowing. The Veteran was afforded a VA examination in October 2012. The Veteran complained of mainly pain in the chest, not related to food intake, with pain shooting to her back and radiating to both ears. She stated that her symptoms are controlled with medication but that she has chest pain episodes once or twice a month, usually triggered by food. The examiner indicated that the Veteran has substernal arm or shoulder pain, but did not have anemia, weight loss, hematemesis, melena, or vomiting. The examiner noted that the Veteran did not have any other pertinent physical findings, complications, conditions or symptoms. As stated previously, to warrant the next higher rating of 30 percent, the Veteran must have persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. While there is evidence of regurgitation, pyrosis, dysphasia, and substernal, arm and shoulder pain, unfortunately, there is no credible evidence that that Veteran's disability causes considerable impairment of health. Treatment records indicate the Veteran has not suffered from any weight loss and is well nourished. Furthermore, the Veteran does not have any evidence of vomiting, hematemesis, melena, or any other symptom that would also indicate considerable impairment of health. As such, the Board finds that the Veteran's current rating of 10 percent appropriately compensates the Veteran for the severity of her disability. The Board notes that the Veteran is competent to give evidence about what she experiences; for example, she is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307 -08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the criteria for a higher 30 percent rating require that the Veteran's symptoms be productive of considerable impairment of health. Here, the Veteran has not directly alleged considerable impairment of health, or described any significant impairment of activities of daily living due to her disability. The medical records and VA examination reports reflect that the Veteran has had no significant weight loss. Additionally, the Veteran has been described as well nourished. There has been no showing or suggestion of anemia or other impairment of health other than experiencing the laryngopharyngeal reflux symptomatology in and of itself. Thus, the Board finds by a preponderance of the evidence that the Veteran does not meet the criteria for a rating greater than 10 percent during the appeal period. In so finding, the Board finds that the Veteran's complaints are credible and consistent with the evidentiary record. However, the Veteran has not argued that she manifests considerable impairment of health due to laryngopharyngeal reflux. To the extent that her statements and arguments can be construed as such, the Board places greater probative weight to the clinical findings of record made by medical examiners who possess greater training and expertise than the Veteran in evaluating the nature and severity of this disorder. The Board has also considered whether there are any other Diagnostic Codes that would result in a more favorable rating for the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 4.114. However, the evidence of record does not indicate that the Veteran's laryngopharyngeal reflux is manifested by gastric, duodenal, or marginal ulcers. 38 C.F.R. § 4.114, Diagnostic Codes 7305-06. Additionally, the evidence does not reflect that the Veteran's laryngopharyngeal reflux is manifested by injuries of the mouth or lips or tongue, stricture, spasm, or diverticulum of the esophagus, adhesions of the peritoneum, gastritis, postgastrectomy syndrome, injury or stenosis of the stomach, residuals of liver injury, cirrhosis of the liver, chronic cholecystitis, cholelithiasis, or cholangitis, injury or removal of the gall bladder, irritable colon syndrome, amebiasis, bacillary dysentery, ulcerative colitis, distomiasis, chronic enteritis or enterocolitis, diverticulitis, small or large intestine resection, fistula of the intestine, peritonitis, impairment of sphincter control, stricture of the rectum or anus, prolapsed rectum, fistula in ano, hemorrhoids, pruritis ani, inguinal, ventral, or femoral hernia, visceroptosis, malignant or benign neoplasms of the digestive system, chronic liver disease, pancreatitis, vagotomy, liver transplant, or hepatitis C. 38 C.F.R. § 4.114, Diagnostic Codes 7200-7301, 7307-45, 7347-54. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Thus, the claim for an initial rating greater than 10 percent for laryngopharyngeal reflux is denied. Extraschedular Evaluation The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular 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). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular 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 symptomatology 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 extraschedular rating. With respect to the first prong of Thun, the Veteran reports symptoms of epigastric distress, dysphagia, pyrosis, substernal pain and arm pain which are specifically contemplated in the criteria of Diagnostic Code 7346. These criteria allow for a rating greater than 10 percent, but the Veteran does not meet, or more nearly approximate, the criteria for the next higher rating. In the Board's opinion, a comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalizations for her disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to service connection for chronic subjective dizziness and vertigo is granted. Entitlement to an initial rating higher than 10 percent for laryngopharyngeal reflux is denied. ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs