Citation Nr: 1624624 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 11-08 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable disability rating prior to March 21, 2011, and an initial disability rating in excess of 30 percent as of March 21, 2011, for gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to March 1991 under honorable conditions, with additional service under conditions other than honorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded this claim in November 2014. The Veteran was scheduled for a Travel Board hearing in August 2014. However, he failed to report for this hearing and provided no explanation for his failure to report. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). In a February 2012 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's GERD to 10 percent effective March 21, 2011. A December 2014 rating decision further increased the GERD evaluation to 30 percent effective March 21, 2011. As the AOJ did not assign the maximum disability rating possible for the entire period on appeal in either rating decision, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issue has been recharacterized above. The Veteran also perfected appeals for service connection for a low back disability and a skin disability of the bilateral hands. The December 2014 rating decision granted service connection for degenerative disc disease with degenerative joint disease of the thoracolumbar spine and dermatitis of the bilateral hands. These grants are considered to be full grants of the benefits on appeal for the low back and bilateral hand skin claims. These claims are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDING OF FACT For the entire period on appeal, the Veteran's service-connected GERD was manifested by persistently recurrent epigastric distress, pyrosis, regurgitation, chest and shoulder pain, and belching, with no evidence of vomiting, material weight loss, hematemesis, melena, anemia, or severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 30 percent initial disability rating for GERD have been met for the period prior to March 21, 2011. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7346 (2015). 2. The criteria for a rating in excess of 30 percent disability rating for GERD have not been met at any time during the appeal period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code 7346 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. A November 2009 letter provided all required notice elements, including what evidence VA would seek to obtain and what evidence the Veteran was expected to provide, what was required to establish service connection, and information regarding disability ratings and effective dates. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA's duty to assist has also been satisfied. The Veteran's service treatment records, Social Security Administration (SSA) records, VA treatment records, and VA examination reports have been associated with the claims file. Private treatment records have been obtained to the extent possible. The Veteran underwent a VA examination to determine the severity of his GERD most recently in December 2014. The examination involved a thorough examination, consideration of lay statements/history, and a conclusion that was supported by sufficient rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is no evidence (lay or medical) of any material worsening of the Veteran's GERD since the December 2014 examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). A new VA examination is not necessary at this time. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). The Board remanded this claim in November 2014 to obtain a new VA examination. As noted above, a new VA examination was provided in December 2014. The claim was subsequently readjudicated in a December 2014 supplemental statement of the case. Accordingly, all remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Board has thoroughly reviewed all the evidence in the Veteran's claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2015). The veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2015). Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's GERD has been rated by analogy under Diagnostic Code 7346 (hiatal hernia). Under Diagnostic Code 7346, a 60 percent evaluation is assigned 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 assigned 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 assigned for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2015). The Veteran was first examined for his GERD in March 2010. At that time he complained of worsening symptoms over the years and the required use of omeprazole. He reported a history of heartburn/pyrosis several times daily and denied hospitalization, surgery, nausea, vomiting, dysphagia, regurgitation, hematemesis or melena, or esophageal dilation. The examiner concluded that the Veteran's overall health was good and that he had no signs of anemia. The Veteran was next examined in May 2011. At that time he complained of chest pain, belching, and right shoulder pain. He clarified that he had experienced these symptoms throughout the appeals period, but did not realize they were related to his GERD. He reported taking omeprazole and ranitidine and a history of daily nausea in the reclining position, occasional dysphagia, daily esophageal distress accompanied by frequent and severe substernal/arm/shoulder pain, heartburn/pyrosis several times daily, and regurgitation of partially digested food several times per week. He denied any history of hospitalization, surgery, vomiting, hematemesis or melena, or esophageal dilation. The examiner noted that an April 2011 esophagogastroduodenoscopy showed a normal esophagus and concluded that the Veteran's overall general health was fair with no signs of anemia, significant weight loss, or malnutrition. The Veteran was then examined in September 2013. At that time he reported taking omeprazole and sucralfate with no relief of symptoms. He complained of chest pain, belching, persistently recurrent epigastric distress, pyrosis (heartburn), reflux, regurgitation, substernal/arm/shoulder pain, sleep disturbance, and nausea. He indicated that his symptoms occurred at least four times per year and lasted less than one day. The Veteran did not experience esophageal stricture, spasm, or acquired diverticulum, scars related to his GERD or its treatment, or other pertinent findings or symptoms. A complete blood count showed normal hemoglobin, hematocrit, and platelets. The examiner concluded that the Veteran's GERD did not impact his ability to work. The Veteran was most recently examined in December 2014. At that time he complained of chronic heartburn requiring continuous medication (omeprazole and sucralfate), persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, arm pain, sleep disturbance, and nausea. He again indicated that his symptoms occurred at least four times per year and lasted less than one day and that he did not experience esophageal stricture, spasm, or acquired diverticulum, scars related to his GERD or its treatment, or other pertinent findings or symptoms. The examiner did not order any diagnostic imaging tests or lab work and concluded that the Veteran's GERD did not affect his ability to work. The remaining medical and lay evidence address the Veteran's GERD complains and is generally consistent with the VA examiners' findings. Significantly, several VA treatment records note the Veteran's use of omeprazole and its effectiveness. Additionally, a June 2013 psychiatric treatment record listed one of the Veteran's strengths as his health. Based on the medical and lay evidence that the Veteran has experienced symptoms of persistently recurrent epigastric distress with pyrosis, accompanied by shoulder pain, and affording him the full benefit-of-the-doubt, the Board finds that his GERD warranted a 30 percent evaluation for the period prior to March 21, 2011. Although he did not report this level of symptomatology at his earlier (March 2010) VA examination, he explained at his May 2011 VA examination that he did not realize these were relevant symptoms. The Board finds that this explanation is reasonable and will consider that the Veteran's reported symptoms at the May 2011 VA examination were also present prior to that time. Without evidence of a distinct date of worsening, the Board finds that the 30 percent evaluation should be granted throughout the entire appeals period. However, the Board finds that the evidence does not establish that the Veteran's service-connected GERD warrants more than a 30 percent disability rating at any point during the appeals period. There is no evidence of vomiting, material weight loss, hematemesis, melena, anemia, or any symptoms productive of severe impairment of health to warrant a 60 percent rating. Rather, the VA examiners found the Veteran's overall health to be fair, at worst, and a June 2013 VA treatment record noted his health was one of his strengths. A rating in excess of 30 percent for GERD cannot be granted at any time during the appeals period. The Board has reviewed the remaining diagnostic codes relating to disabilities of the digestive system and finds that they are not applicable. There is no evidence that the Veteran has been diagnosed with any other esophagus or stomach conditions associated with his GERD to warrant an increased rating under another Diagnostic Code relating to the digestive system. As such, an increased rating cannot be assigned under Diagnostic Codes 7200-7345 or 7347-7354. 38 C.F.R. § 4.114, Diagnostic Codes 7200-7345, 7347-7354 (2015). Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the 30 percent disability rating assigned herein throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet.App. 484 (2016). Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) on a collective basis is not warranted in this case. However, on an individual basis, the Board has considered the potential application of section 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA 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). According to the regulation, an extraschedular disability rating is warranted 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. 38 C.F.R. § 3.321(b)(1) (2015); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria specifically contemplate the Veteran's reported symptoms and a higher rating is still available for symptomatology more severe than the Veteran's. The Board has also considered all other diagnostic codes for the knee to ensure all symptoms are adequately evaluated. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-GERD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2015). Referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating in excess of that granted herein, that doctrine is not applicable. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to an initial disability rating of 30 percent for GERD for the period prior to March 21, 2011 is granted. Entitlement to a rating greater than 30 percent for the entire period on appeal, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs