Citation Nr: 0811430 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-15 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty from February 1975 to January 1977, and from September 1977 to March 1988. This appeal arises from a October 2003 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) located in Roanoke, Virginia, wherein the veteran was awarded service connection for GERD and assigned a 10 percent disability rating. In June 2006, the Board remanded this matter to the RO to afford due process and for other development. Following its completion of the Board's requested actions, the RO continued the denial of the veteran's claim (as reflected in a June 2007 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. In his April 2004 substantive appeal, the veteran raised a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, alleging that he could not obtain or retain employment due to his GERD. Insofar as that matter is not properly before the Board, it is referred to the RO for disposition as appropriate. Additional medical consultation and treatment records were received in March 2008 after the case had been certified to the Board by the agency of original jurisdiction (AOJ). Although such evidence has not first been considered by the AOJ, the submission was accompanied by a waiver of referral to the AOJ. 38 C.F.R. § 20.1304 (2007). Consequently, a decision by the Board is not precluded. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. GERD is manifested by weight loss without anemia or hiatal hernia and symptoms are not accompanied by substernal or arm or shoulder pain, productive of considerable or greater impairment of health. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for GERD 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, Codes 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in letters from the RO dated in November 2002 and July 2006. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board acknowledges a recent decision from the Court that provided additional guidance of the content of the notice that is required to be provided under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increased compensation benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that decision, the Court stated that for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the VA must provide at least general notice of that requirement to the claimant. See Vazquez-Flores v. Peake, supra. While the veteran was clearly not provided this more detailed notice, the Board finds that the veteran is not prejudiced by this omission in the adjudication of his increased rating claim. In this regard, during the course of this appeal the veteran has been represented at the RO and before the BVA by a Veterans Service Organization (VSO) recognized by the VA, specifically the Virginia Department of Veterans Affairs and the Board presumes that the veteran's representative has a comprehensive knowledge of VA laws and regulations, including particularly in this case, those contained in Part 4, the Schedule for Rating Disabilities, contained in Title 38 of the Code of Federal Regulations. In addition, after the veteran and his VSO representative were provided copies of the Statement of the Case by the RO, the representative submitted a VA Form 646 (Statement of Accredited Representative in Appealed Case) in which the representative essentially acknowledged receipt of the Statement of the Case and provided additional argument in response to that document, which the Board notes contained a list of all evidence considered, a summary of adjudicative actions, included all pertinent laws and regulation, including the criteria for evaluation of the veteran's disability, and an explanation for the decision reached. In a Form 646 dated in September 2004, the veteran's representative argues that the criteria for a 30 percent evaluation under Diagnostic Code 7396 [sic] were met. The Board observes that there is no Diagnostic Code 7396, whereas the diagnostic criteria for evaluating the disability at issue are set forth under Diagnostic Code 7346 and, thus regards this reference as a mere typographical error. Notwithstanding, the Board regards the communication for all intents and purposes as setting forth actual knowledge of the diagnostic criteria. In the Board's opinion all of this demonstrates actual knowledge on the part of the veteran and his representative of the information that would have been included in the more detailed notice contemplated by the Court in the Vazquez-Flores case. As such, the Board finds that the veteran is not prejudiced based on this demonstrated actual knowledge. Moreover, while the veteran asserts that his disorder renders him unemployable, the April 2007 VA examination specifically explored and assessed the effects of the veteran's disability has on the claimant's employment and daily life. The veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. The appellant has not identified any additional evidence that could be obtained to substantiate the claim. Clearly, from submissions by and on behalf of the veteran, he is fully conversant with the legal requirements in this case. Thus, the content of these letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. Factual Background A rating action in October 2003 granted service connection for GERD and assigned a 10 percent rating. The award of service connection was based on service treatment records showing ongoing treatment for gastrointestinal symptoms. Service department medical records include a report of an abdominal series performed in February 2002. Findings revealed abnormal bowel gas pattern, suggesting either a focal ileus or partial small bowel obstruction. In June 2003, the veteran underwent VA fee-basis medical examination. He reported having been diagnosed with a peptic ulcer in service. He reported abdominal pain two to three times per month, usually at night after eating some inciting food such as fried foods, pizza, alcohol, coffee or chocolate. The pain is usually relieved by vomiting. He described the pain as constant and non-radiating. He claimed occasional stomach pains with no melanic stools. He was on no medication and had not been seen by VA for management of the disorder. On objective examination, his weight was reported as 185 pounds. The abdomen was soft and nontender. Bowel sounds were present. Also in June 2003, an upper GI series was performed revealing moderate dysmotility in the middle and distal portions of the esophagus, with moderately frequent reflux, but no mass, stricture or hiatal hernia. No inflammatory changes are evident. Thickened mucosal folds in the proximal half of the stomach were characterized as a non specific finding which may be idiopathic or may be due to a mild inflammatory or infiltrative process. A discrete ulcer was not observed. Navy outpatient treatment records from June 2003 and August 2003 reflect medication being prescribed for the veteran's GERD, but the extent of symptomatology was not described. However, each time he was instructed to return if symptoms worsened, but there are no records indicating the necessity of any further follow-up. The veteran was afforded a VA examination in April 2007. The veteran claimed progressively worse GERD symptomatology. The veteran claimed that on flare-ups lasting three to five days every two months, he would be incapacitated for seven days. The veteran acknowledged not being hospitalized nor needing surgery for the disorder. On physical examination, no hernia was appreciated. His abdomen was soft and non-tender. Tenderness was noted with deep palpation in epigastric area of the abdomen. He denied any pain that day, and denied nausea, vomiting, diarrhea or other gastric symptoms. He denied pain with deep palpation of other quadrants. He denied substernal, arm or shoulder pain but did complain of monthly dysphagia and regurgitation lasting approximately one week. He was taking medication with minimal effectiveness. His weight was 158 pounds. An upper GI series was afforded. Swallowing mechanism was normal. Contrast material moved down the esophagus without evidence of obstruction. There was no evidence of esophageal filling defect or stricture. The distal esophagus revealed minimal tertiary contractions. There was no definite evidence of hiatal hernia. Mild reflux was seen during fluoroscopy. Stomach distended normally and emptied without delay. There was adequate distention and normal shape of the duodenal bulb. Small bowel appeared unremarkable. Impression was mild GERD without evidence of associated hiatal hernia and minimal tertiary contractions of the lower esophagus. The examiner noted the veteran was unemployed and, although the veteran described his episodes of illness rendered him incapacitated, the examiner noted that the effects of the GERD on occupational and daily activities was as follows: chores: mild effect; shopping: none; exercise: mild effect; sports: mild effect; recreation; none; traveling: none; feeding: moderate effect; bathing: none; dressing: none; toileting: mild effect; grooming; none. The examiner concluded that the veteran experienced pain and material weight loss, persistently recurrent epigastric distress with dysphagia and regurgitation only by the veteran's report. No substernal pain or arm or shoulder pain was demonstrated. On examination, no qualities were demonstrated suggesting a considerable impairment of health. There was no evidence of anemia, dysphagia, pyrosis or persistent regurgitation that was clinically appreciated. Law and Regulations Disability ratings are rendered upon the VA's Schedule for Rating Disabilities as set forth at 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. The higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exacerbations proportionate" with the severity of the disability. 38 C.F.R. § 4.1. The present level of disability is of primary concern where service connection has been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1996). In adjudicating the increased rating claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim for service connection was filed in October 2002. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's claim. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the veteran's disability at issue. 734 6 Hernia hiatal: Ratin g Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health 60 Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health 30 With two or more of the symptoms for the 30 percent evaluation of less severity 10 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). Analysis The veteran reports a history of recurrent epigastric distress with dysphasia, and regurgitation. However, the 2003 and 2007 VA medical examination reports supports weight loss without anemia or hiatal hernia and the symptoms are not accompanied by substernal or arm or shoulder pain, productive of considerable or greater impairment of health. The2003 and 2004 service department records do not describe GERD symptoms and as such are not useful to assess the veteran's condition. The April 2007 examination assessed the effects of the GERD disorder on usual daily activities was no effect or mild effect except with respect to eating, which was regarded as producing a moderate effect. The physician concluded that the GERD did not result in considerable impairment of health. In view of the foregoing, the Board finds that the impairment the veteran experiences attributable to his service-connected GERD does not more nearly approximate the criteria for the assignment of a rating in excess of the 10 percent that has been in effect since the award of service connection. As noted above, at the time of the examinations, clinical examination were essentially unremarkable. Upper gastrointestinal series showed no evidence of a sliding hiatal hernia or distal esophageal strictures, ulcerations, or mass lesions. Blood work was reviewed and was interpreted as being normal. The aforementioned medical evidence shows no appreciable impairment of health or other symptoms associated with the assignment of a higher disability rating. After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002). The Board notes there is no showing that the GERD has caused marked interference with employment beyond that already contemplated in the assigned 10 percent rating, or necessitated any frequent periods of hospitalization, such that the application of the regular schedular standards would be rated impracticable. Hence, no action as set forth in 38 C.F.R. § 3.321(b)(1) for the assignment of an extraschedular evaluation is in order. ORDER An initial disability rating in excess of 10 percent for GERD is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs