Citation Nr: 0810473 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-29 116A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial evaluation for gastroesophageal reflux disease (GERD), currently rated as noncompensable from March 27, 2003 to September 28, 2004, and as 10 percent disabling from September 29, 2004. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty for training (ACDUTRA) from May 1985 to June 1985. He was discharged from the Army National Guard in 1989. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Winston- Salem, North Carolina Regional Office (RO) which, in pertinent part, denied the veteran's claim of entitlement for a TDIU. In April 2005, a Board hearing was held at the VA Central Office in Washington, D.C. before the undersigned Veterans Law Judge (VLJ) who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The Board subsequently remanded the case for additional development in July 2005. Part of the directed development on remand related to a June 2004 rating decision issued by the RO that granted service connection for gastroesophageal reflux disease (GERD) and assigned an initial noncompensable evaluation effective in March 2003. The appellant filed a timely notice of disagreement (NOD). In a March 2005 rating decision, the RO awarded a 10 percent rating effective September 29, 2004, but did not award the maximum benefit available. See AB v. Brown, 6 Vet. App. 35 (1993)( Holding that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded). The Board remanded the case in July 2005 and again in March 2007, for further development. The case is now ready for appellate review. FINDINGS OF FACT 1. Prior to September 29, 2004, the veteran's GERD was not manifested by persistently recurrent epigastric distress with two or more of the following symptoms: dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain that is productive of a considerable impairment of health. 2. Since September 29, 2004, the veteran's GERD is not manifested by persistently recurrent epigastric distress, with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain that is productive of a considerable impairment of health. 3. The veteran is a college graduate with specialized training as a computer electronics technician. 4. The veteran's service-connected disabilities are postoperative right unicondylar knee replacement with lateral instability, rated 30 percent disabling; right knee degenerative arthritis, rated 10 percent disabling; and GERD, secondary to anti-inflammatory medication, rated 10 percent disabling. The combined rating is 40 percent. 5. The veteran's service-connected disabilities alone are not of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to September 29, 2004 for the veteran's GERD, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). 2. The criteria for a rating in excess of 10 percent since September 29, 2004, for the veteran's GERD, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). 3. The criteria for a TDIU rating are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v Nicholson, 487 F.3d 881 (2007). In a letter dated in July 2002, the veteran was advised in accordance with the law regarding his TDIU claim. This advisement was reiterated and amplified as to the status of the evidence of record in an August 2005 letter to the veteran, as directed by the Board in its July 2005 remand. As for the initial evaluation claims, in Dingess, the Court of Appeals for Veterans Claims held that in cases 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 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. At 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in the initial rating claims has been satisfied. In Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits be assigned if service connection is awarded. The veteran did not receive the notice consistent with Dingess. As to the issue presently appealed, the preponderance of the evidence is against these claims, and any question as to the appropriate disability rating and effective date to be assigned is moot. In Vazquez-Flores v. Peake, 22 Vet. App. (2008), it was held in part that if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Subsequent to receipt of the veteran's claim for an increased rating for GERD, he was provided notification via an October 2004 letter, of what evidence would substantiate his claim. Although he was not advised in this letter of the rating criteria to be employed, he was so advised in the Statement of the Case dated in February 2006. Further, as noted above, the veteran was advised in accordance with the law by letter dated in August 2005. As to both of the claims at issue, the veteran submitted numerous correspondence and medical evidence, as well as submission specifically arguing that his disorder met the criteria for an increased rating, as well as that his combined service-connected rating rendered him unemployable. Thus, the veteran had actual knowledge of what was necessary to substantiate the claim, and post-adjudicatory notice renders any facial non- compliance with Vazquez-Flores not prejudicial. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes VA outpatient treatment records, VA compensation examinations, and private treatment records. An April 2006 Administrative Law Judge decision awarding the veteran Social Security Administration disability benefits was also associated with the claims folder. There are no known additional records to obtain. The veteran was offered a VA hearing and testified at a Central Office hearing in April 2005. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Increased Initial Ratings (GERD) Service connection for GERD, secondary to anti-inflammatory medication was granted by rating decision of June 2004. A noncompensable rating was awarded effective March 2003. By rating decision of March 2005, the noncompensable rating for GERD was increased to 10 percent, effective September 29, 2004. This rating is effective to this date. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 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. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's GERD disability is evaluated in stages as the veteran's disability rating was increased during the appellate period. Further, the United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, the veteran's GERD claim should be evaluated prior to September 29, 2004, to determine if the veteran warrants more than a noncompensable rating, and since September 29, 2004, to determine if the veteran warrants in excess of the 10 percent rating granted since that time. VA outpatient treatment records show that the veteran was seen in February 2003 complaining of acute abdominal pain of four days with nausea and vomiting, and diarrhea on two to three occasions. He indicated that he took Mylanta and that he had bloody stools and "pus from the rectum." Physical examination revealed that the abdomen was round and soft with decreased bowel sounds in all quadrants. There was point tenderness in the left lower quadrant with some rebound tenderness, no masses, and the liver was large and tender. A CT scan of the abdomen was negative for pathology. Much gas and stool was seen. Laboratory findings were within normal limits. The assessment was acute abdominal pain. The veteran was instructed to increase fluids, fruits, vegetables, and oatmeal in his diet. In January 2004, the veteran was seen with a history of GERD. He related that he did not subjectively believe that he was getting adequate relief from his Zantac. He requested Prilosec. He related that his GERD was under control until he had some alcohol over the holidays. He was seen with symptoms of bad taste in the mouth at night and heartburn. Physical examination showed a soft abdomen and normal bowel sounds. He was given Prilosec as a change in medication. In April 2004, the veteran underwent a QTC VA medical examination. The veteran gave a history of taking multiple different medications over the years, especially anti- inflammatory medicines. He stated that after taking these medicines, he began to experience mid epigastric abdominal pain and burning. He also reported that he had developed rectal bleeding. On clinical examination, the veteran underwent an upper endoscopy and colonoscopy which the examiner described as findings that "did not really show anything." For two weeks, he had been taking Nexium with significant improvement. At the time of the examination, he denied significant problems with his stomach as the Nexium 40 mg. seemed to be taking care of all of his symptoms. He denied weight loss, rectal bleeding, nausea, or vomiting. Physical examination revealed the veteran weighed 263 pounds, and that he had a normal abdomen with no tenderness to palpation. He had an upper GI series which showed a small sliding hiatal hernia. There was no strictures or esophagitis seen. The stomach, duodenal bulb, sweep and proximal small bowel were normal. The impression was small sliding hiatal hernia. The remainder of the upper GI series was normal. The pertinent diagnosis was GERD, secondary to pain medications due to service-connected right knee osteoarthritis. The examiner indicated that his GERD problems had significantly improved since he had been on Nexium and he had been asymptomatic since that time. He reported occasional stomach upset only, roughly once or twice a week. The veteran underwent a VA examination in December 2004. He gave a history of GERD since 1992. He also related that he choked on his saliva twice a week while sleeping. He complained of hemorrhoids, irregularity and a hiatal hernia shown on x-ray and endoscopy. He had weight gain of 15 pound in three months. He indicated that he was unable to leave the bathroom for two hours at a time. Physical examination revealed the veteran weighed 259 pounds. He was well developed, well nourished, and in no acute distress. Examination of the abdomen revealed tenderness to palpation. The findings were moderate diffuse tenderness over the left lower quadrant area of the sigmoid colon, probably due to chronic constipation. The veteran had signs of anemia. The upper GI series was within normal limits. The diagnosis was GERD, secondary to anti-inflammatory medication, with no change in diagnosis. The diagnosis was noted not to cause significant anemia or cause malnutrition. The veteran testified at a Central Office hearing before the undersigned VLJ in April 2005. The veteran testified that he choked on his saliva at night, causing sore throat. He indicated that he was medicated with Prilosec. He also testified that he may regurgitate once every four or five days, vomit once every couple of months, and had nausea. He related alternating constipation and diarrhea. The veteran was seen on a VA outpatient treatment basis in November 2005. He was seen complaining of recurrent reflux with increased gas and epigastric irritation. He denied epigastric pain, nausea, vomiting, belching, and chest, arm or shoulder pain. He related that he was taking his medication but was not following his diet. On a pain scale of 0 to 10, the veteran rated his pain as a 2. The pertinent diagnosis was GERD. His Prilosec was increased, and Reglan was added after meals. He was instructed to follow up with his primary care physician. The veteran was seen in the emergency room at the Bertie Memorial Hospital in January 2007. He complained of chest pain. X-ray findings were negative. The veteran was given a GI cocktail and stated that he felt better and wanted to go home. He was told to avoid spicy greasy foods. The veteran asserts that his GERD is more severe than the current evaluation reflects. He complains of choking on his stomach contents during sleep, needing an increase in prescription medications to control his GERD, difficulty swallowing, heartburn, regurgitation, stomach aching, and alternating constipation and diarrhea. Since there is no Diagnostic Code directly applicable to GERD; the veteran's service-connected GERD is therefore currently rated by analogy under Diagnostic Code 7346, which addresses hiatal hernia. Specifically, Diagnostic Code 7346 dictates that persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent disability rating. A 10 percent disability rating is warranted when there are two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. As reflected in the clinical evidence of record, the veteran's GERD prior to September 29, 2004, warranted a noncompensable rating. The clinical evidence of record reflected that the veteran took medication for treatment. While the veteran complained of choking on his saliva and heartburn, there was no evidence of complaints or objective findings of dysphasia, substernal pain, shoulder pain, arm pain or impairment of health resulting from the veteran's GERD symptoms. Specifically, in April 2004, he indicated that his GERD problems had significantly improved since he had been on Nexium and that he had been asymptomatic since that time. Thus, the medical evidence does not show two or more of the symptoms necessary to warrant a compensable rating prior to September 29, 2004. The evidence does not show at least two of the following: dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain. Therefore, a 10 percent rating is not warranted and an increased evaluation for the period prior to September 29, 2004, is denied. Since September 29, 2004, no more than a 10 percent rating for the veteran's GERD has been shown. The veteran was seen by VA in December 2004, and the examiner indicated that there was no change in his diagnosis and his GI series was within normal limits. In April 2005, he complained of regurgitation every four to five days and vomiting every couple of months. His medication for GERD was increased in November 2005 and he did express that he had chest pain in January 2007, that was relieved after taking a GI cocktail. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain, productive of considerable impairment of health, necessary for a 30 percent rating, has not been shown. The veteran has maintained a weight in excess of 250 pounds and his health has not been compromised. Based on the foregoing, an increased compensable rating in excess of 10 percent for GERD, since September 29, 2004 is not warranted. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The veteran's service connected disabilities include postoperative right unicondylar knee replacement with lateral instability, rated 30 percent disabling; right knee degenerative arthritis, rated 10 percent disabling; and GERD, secondary to anti-inflammatory medication, rated 10 percent disabling. The combined rating is 40 percent. The Board has considered whether further development of the claim is warranted, specifically with regard to the appropriateness of the service-connected ratings. While it cannot be doubted that the veteran has a significant right knee impairment The veteran underwent two knee right knee surgeries, involving arthroplasty and the implant of a unicondylar implant (November 2002) and an adjustment thereof (August 2004). However, subsequent to the latter corrective action, the veteran's right knee prosthesis was noted to be in good position, albeit with soft tissue swelling. The veteran does not meet the schedular criteria for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). Thus, it now must be determined if the veteran's service- connected disabilities alone prevent him from being able to secure or follow a substantially gainful occupation as a result of service-connected disabilities. For a veteran to prevail on a claim based upon unemployability, it is necessary that the record reflect some factor which places the case in a different category than other veterans with equal rating of disability. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The question is whether the veteran is capable of performing physical and mental acts required by employment, not whether the veteran can find employment. Id. In this case, the evidence shows that the veteran has been unemployed since 2002. He is a college graduate. In an April 2006 notice of decision, the veteran received a favorable decision on his Social Security disability claim. The veteran's disabilities for social security disability purposes include degenerative joint disease of both knees. The veteran is not in receipt of service connection for his left knee degenerative joint disease. The veteran testified at a Central Office hearing in April 2005. The veteran testified that he stopped work in 2002. He related that he would not be able to work as an electrician, even if he did not have a low back or left knee disability. He stated that he had to be focused working as an electrician and that he had limited sleep at night because of his service-connected disabilities. He testified that the fatigue prevented him from focusing and paying attention on the job. After a total review of the record, the veteran's service- connected disabilities alone do not prevent him from obtaining substantially gainful employment. The veteran has bilateral knee disability that affects his ability to work. Although the veteran has some disability as it relates to his GERD, it does not prevent him from other employment, which may be substantially gainful in nature. The veteran has completed college. None of the medical evidence of record shows that his service-connected disabilities alone, prevent him from obtaining all forms of substantially gainful employment. While the Social Security Administration has found the veteran to be disabled within the meaning of its applicable law, these findings are relevant but not necessarily binding on VA. Holland v. Brown, 6 Vet. App. 443 (1994). The criteria for the establishment of a total rating are outlined above, and are not the same as that of the Social Security Administration's criteria for the establishment of a finding of "disabled." Given the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to a TDIU. 38 C.F.R. § 4.16 (2007). (CONTINUED ON NEXT PAGE) ORDER A compensable initial evaluation for GERD from March 27, 2003 to September 28, 2004, is denied. An increased initial evaluation for GERD since September 29, 2004, is denied. A total rating based on individual unemployability is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs