Citation Nr: 1535901 Decision Date: 08/21/15 Archive Date: 08/31/15 DOCKET NO. 07-17 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial rating greater than 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to October 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Offices (RO). During the pendency of this appeal, the RO granted an initial 10 percent rating for the Veteran's service-connected GERD, retroactive to the day after service discharge. Because this is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Following the April 2007 statement of the case (SOC), the Veteran testified before a Decision Review Officer (DRO) at the RO in September 2007 and a transcript of that hearing is on file. The hearing was in compliance with proper procedure as the DRO explained the issues, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the hearings. Bryant v. Shinseki, 23 Vet. App. 488 (2010). In October 2010 and October 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination and opinion. The actions specified in the October 2010 and October 2013 Remands were completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). (CONTINUED ON NEXT PAGE) FINDING OF FACT During the period on appeal, the Veteran's gastroesophageal reflux disease with has caused pyrosis, reflux, regurgitation, sleep disturbance, abdominal pain, and dysphagia without substernal, arm, or shoulder pain; weight loss; vomiting; hematemesis; melena; esophageal stricture; or considerable impairment of health. CONCLUSION OF LAW The criteria for an initial schedular evaluation in excess of 10 percent for gastroesophageal reflux disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7346 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), 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 C.F.R. § 3.159 (2014). Here, the Veteran was provided with the relevant notice and information in a December 2005 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R., Part 4 (2014). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2014). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. In that decision, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The VA Schedule for Rating Disabilities provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress, or pain, anemia and disturbances in nutrition. Thus, certain coexisting diseases of the digestive system do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in section 4.14. 38 C.F.R. § 4.113 (2014). Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2014). The Veteran's GERD is rated under Diagnostic Code 7346, which rates hiatal hernia. Diagnostic Code 7346 provides a 60 percent evaluation 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 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 evaluation when the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114 (2014). Service treatment records indicate the Veteran was diagnosed with GERD in service. During a January 2006 VA examination, the Veteran reported he was seen in November 2011 and placed on Nexium which controlled his symptoms. He had an upper gastrointestinal (GI) series in November 2011 which did now show anything abnormal other than some reflux. He stated that his symptoms included heartburn and lower chest burning pain, but he never had regurgitation or dysphagia. He was seen in July 2005 and the examiner felt his symptoms had been controlled on Nexium and it was suggested the Veteran try it twice a day. The diagnosis was GERD with good response to treatment. Post-service private treatment records also include ongoing treatment for GERD. In a March 2006 private treatment record, the Veteran reported he has been on medication for approximately 5 years, initially with good control, but he now had frequent epigastric discomfort. He admitted to frequent regurgitation, but denied dysphagia. The Veteran also denied weight loss, chest pain, extremity edema, abdominal pain, nausea, vomiting, easy bruising or bleeding, and clotting problems. A December 2006 VA progress note indicated the Veteran continued to complain of regurgitation with some water brash at night. An esophagogastroduodenoscopy (EGD) showed multiple fundic gland polyps consistent with proton pump inhibitor (PPI) use and small hiatal hernia with minimal distal esophagitis. The Veteran denied dysphagia, pain on swallowing, hematemesis, abdominal pain, melena, and chest pain. The Veteran expressed interest in surgical intervention. The Veteran underwent laparoscopic Nissen fundoplication in February 2007. In a February 2007 follow up, the Veteran complained of burping when needed and some mild lower dysphagia without odynophagia. During a March 2007 VA examination, The Veteran complained of reflux and heartburn. He reported progressively worse symptoms until surgery in January 2007. The examiner noted no history of nausea, vomiting, hematemesis or melena, or esophageal dilation. The Veteran complained of occasional dysphagia, esophageal distress accompanied by pain several times a week, heartburn or pyrosis several times daily, and regurgitation less than weekly. The Veteran reported he lost no time from work due to symptoms. The diagnosis was hiatal hernia. During a September 2008 VA examination, the Veteran reported an increase in his epigastric discomfort. He reported nonradiating pain, that was sharp and present all of the time. It was relieved by eating food about every two hours. He reported he was placed back on twice daily PPI and that his pain had started to improve. The examiner noted he had a double contrast upper GI series in September 2008 which was unremarkable with the exception of a noted prior Nissen fundoplication. The Veteran denied any dysphagia. He had had no hematemesis or melena. He had no symptoms of reflux. There was mild nausea with abdominal pain. His pain was not currently affecting his employment. The diagnosis was GERD with gastritis. VA progress notes indicate the Veteran had improved symptoms after his surgery in January 2007. In a September 2009 VA progress note, the Veteran reported he still had some "problems" in this area. In October 2009 and November 2010 notes, the Veteran denied chest pain, abdominal pain, and difficulty sleeping. He also reported that he had been on Nexium in the past, but he was "doing well now and not on much of anything." During a November 2013 VA examination, the Veteran stated he initially developed symptoms in 2000 and was placed on medication. He had a Nissen fundoplication in February 2007 which helped a lot and he did not have recurrent symptoms until about two years later when he began to have heartburn and reflux again. He was re-started on medication and was currently taking Nexium 40 mg per day. His current symptoms were mild to moderate heartburn, particularly after a meal. He also reported reflux symptoms daily, more noticeable if he ate spicy foods. He tried to avoid eating too close to laying down at night. If the symptoms got bad at night, he would sleep in his recliner. This happened about four times per month. The examiner noted that the Veteran complained of persistently recurrent epigastric distress, pyrosis, reflux, and sleep disturbance. The examiner found no impact on his ability to work. The diagnosis was GERD, doing well on Nexium. In a December 2013 statement, the Veteran reported that he had "nasty" symptoms related to his GERD until he had surgery in 2006 or 2007 which cleared it up for a time. The symptoms started returning in 2009 and he went back on medication. He takes high doses of Nexium to control the symptoms. He asserted that if he did not take his medication he would have "persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health." Based on a review of all the evidence, the Board finds that entitlement to a disability in excess of 10 percent for the Veteran's GERD with hiatal hernia is not warranted for any period on appeal. The Board can find no evidence of complaints of dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain or that his condition causes material weight loss, hematemesis, or melena with moderate anemia. In a January 2006 VA examination report, the Veteran complained of lower chest pain, but denied regurgitation or dysphagia. During a March 2007 VA examination, the Veteran complained of occasional dysphagia, pyrosis, regurgitation, and esophageal distress accompanied by pain. However, there is no indication that this pain was substernal or arm pain, and a VA examination report dated in September 2008 described the pain as abdominal pain. Furthermore, the Veteran consistently denied chest pain in subsequent VA progress notes. Considerable impairment of health is not demonstrated by the objective evidence of record. The Board recognizes the Veteran's assertion that he would have the symptoms if he did not take his medication; however, it appears that presently, the Veteran's symptoms are well-controlled with medication and dietary modification. Overall, the Board finds that the Veteran's GERD symptoms cannot be considered productive of considerable impairment of health during the period on appeal, and accordingly, a higher disability rating is not appropriate. The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2014). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties, described above, are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. ORDER Entitlement to an initial disability evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs