Citation Nr: 0814178 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-09 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a dental disorder, claimed as secondary to treatment of service-connected tuberculosis. 2. Entitlement to an evaluation in excess of 20 percent for residuals of frostbite, right foot. 3. Entitlement to an evaluation in excess of 20 percent for residuals of frostbite, left foot. 4. Entitlement to an increased (compensable) initial evaluation for gastroesophageal reflux disease (GERD) with hiatal hernia. 5. Whether new and material evidence has been received to reopen a claim for aphakia, right eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from December 1943 to June 1946 and from December 1947 to June 1954. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans affairs (VA) Regional Office (RO) in Montgomery, Alabama. By a rating decision prepared in May 2004 and issued in June 2004, the RO granted service connection for gastroesophageal reflux disease with hiatal hernia associated with gastric aspiration for tuberculosis treatment, and assigned a noncompensable evaluation, effective in May 2003. The RO also denied a request to reopen a claim for service connection for aphakia, right eye, in the absence of new and material evidence, and denied entitlement to service connection for a dental disorder. A statement off the case (SOC) was issued in February 2005 and the veteran perfected timely substantive appeal of those three issues in March 2005. In March 2005, the veteran disagreed with a determination that a rating in excess of 20 percent should not be assigned for residuals, frostbite, left foot, or for residuals, frostbite, right foot. A statement of the case (SOC) was issued in February 2006 and the veteran perfected timely substantive appeal of those two issues in that same month. A supplemental statement of the case (SSOC) as to all five issues on appeal was sent to the veteran in May 2007. The veteran's representative contended, in a November 2007 Informal Hearing Presentation, that a claim of entitlement to an award of total disability compensation based on individual unemployability (TDIU) is on appeal before the Board. However, the RO notified the veteran, in September 2007, that an appeal to the Board which was received by VA in late July 2007 was not a timely appeal. The claims file before the Board does not reflect that the veteran disagreed with that determination by the RO. No claim for TDIU is before the Board for appellate review at this time; however the untimely substantive appeal may be viewed as a new claim and is REFERRED to the agency of original jurisdiction for action. In his February 2006 substantive appeal, the veteran contended that his cold injury residuals had increased in severity because that injury had now caused osteoarthritis of the hips. This contention raises a claim of entitlement to service connection for osteoarthritis of the hips, as due to cold injury. This claim is REFERRED to the agency of original jurisdiction for action. The veteran's motion for advancement on the docket based upon the veteran's age was granted in March 2008, and the case has been advanced on the docket. The claim of entitlement to service connection for a dental disorder, claimed as secondary to treatment of service- connected to tuberculosis, the claim that new and material evidence has been submitted to reopen the claim for service connection for aphakia, and the claims for increased evaluations for bilateral frostbite of the feet are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's GERD and hiatal hernia are manifested by increased symptoms if he forgets to take his medications, require use of medications three times daily, and are manifested by persistent regurgitation, dysphagia, eructation, and the need to sleep in an elevated position. CONCLUSION OF LAW Criteria for an initial 30 percent evaluation for GERD and hiatal hernia have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.114, Diagnostic Code 7346 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of these claims, the Board will consider VA's duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). That act provides that 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran's claim for an increased (compensable) initial evaluation for gastroesophageal reflux disease with hiatal hernia arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA as to this claim. VA also has a duty to assist the veteran in the development of the claim. VA outpatient treatment records throughout the pendency of this appeal including treatment records dated in May 2007, have been obtained. The veteran has argued that the April 2004 VA examination did not accurately portray the severity of his service-connected GERD and hiatal hernia. As that examination report supports the veteran's contention that he is entitled to a 30 percent evaluation for service-connected disability characterized as GERD and hiatal hernia, when considered in light of the later VA outpatient treatment records, the Board finds that no additional examination is required. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. The Board finds that the duty to assist has been met. As both the duty to notify the veteran and the duty to assist the veteran have been met, appellate review may proceed. Claim for increased initial evaluation, GERD with hiatal hernia The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. A rating that is assigned with a grant of service connection, such as the case in this appeal, must take into account all evidence of the nature and severity of the disability from the effective date of service connection. Thus, the rating might be a "staged" rating, that is, one comprised of successive ratings reflecting variations in the disability's severity since the date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran's appeal for a higher initial evaluation for the disability at issue requires consideration of staged ratings. In March 2003, the veteran reported increased reflux symptoms which were not controlled by the prescribed medication (Aciphex). VA outpatient treatment notes, including a treatment note dated in December 2005, disclose that the veteran was diagnosed as having laryngeal pharyngeal reflux resulting in dysphonia. The Board notes that the veteran has been granted a separate, compensable, 10% evaluation for vocal cord damage, under diagnostic code 6516, in addition to the noncompensable initial evaluation assigned for GERD under diagnostic code 7346. Therefore, the veteran's disability due to dysphonia are not applicable to warrant an increased (compensable) evaluation for GERD. On VA examination conducted in April 2004, the veteran reported diet restrictions, inability to eat spicy foods or pizza, eructation (belching or burping), and difficulty swallowing. The veteran reported that he had to hold his neck slanted to one side when swallowing. Otherwise, he would choke. The veteran's weight was 151 pounds, which the examiner described as a normal weight for the veteran's height, just under 70 inches. The veteran reported good appetite. The examiner noted that the veteran's symptoms were consistent with damage to the gastroesophageal junctional sphincter resulting from multiple nasogastric aspirations during treatment of the veteran's service-conducted tuberculosis. In his disagreement with a noncompensable evaluation for GRD, the veteran noted that he had frequent regurgitation when lying down to sleep or if any pressure was applied to his stomach when bending over. He described strangling and choking episodes, and stated that the regurgitation caused constant pain in the shoulder and arm. VA outpatient speech treatment notes reflect that the veteran complained of discomfort and difficulty using a wedge when sleeping. However, the veteran was advised that this regurgitation precaution should continue. The outpatient treatment notes substantiate the veteran's report of frequent regurgitation, as the treatment notes reflect that his medications were changed several times in response to these complaints. An October 2005 treatment note reflects that the veteran had increased symptoms if he forgot to take a dose of his medication. This treatment record also reflects that the veteran has upper and lower dentures. There were no lesions in the oral cavity or oropharynx. The Board notes that there is no specific diagnostic rating criteria for GERD or for damage to the gastroesophageal junction sphincter. The veteran's GERD with hiatal hernia is evaluated under 38 C.F.R. § 4.114, DC 7346. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. The clinical evidence and opinions of record established that the veteran has dysphagia (difficulty swallowing) and must pay careful attention to avoid choking when swallowing. The record reflects that he attends frequent speech pathology group sessions, and that measures to cope with his dysphagia are addressed as part of that treatment. The record also demonstrates that the veteran has persistent regurgitation, since he has hand this symptom for more than 50 years. The record suggests that his regurgitation is not frequent if he takes his medications properly and avoids sleeping flat or placing pressure on his stomach when bending over. Nevertheless, asked the rating criteria requires only persistent, rather than frequent, regurgitation, it appears that the veteran meets the criteria for a 10% evaluation for GERD and hiatal hernia, excluding consideration of dysphonia. However, it is more difficult to determine whether a 30% evaluation is appropriate. In this case the veteran has upper and lower dentures. Since he has no remaining natural teeth, the medical evidence does not address whether his regurgitation would have resulted in pyrosis if teeth were present. That record reflects that the veteran's complaints of arm and shoulder pain are credible, but there is no medical evidence attributing this symptom to the service- connected GERD. The record does, however, reflect that the veteran has numerous medical disorders, including cardiovascular and musculoskeletal disorders, to which this symptom might be attributable. The records as a whole, including both the April 2004 VA examination report ends consideration of outpatient treatment records through May 2007, disclose that a form of anemia has been diagnosed, but is attributed to a B12 disorder, not to GERD or hiatal hernia. The record is unfavorable to a finding that the veteran has considerable impairment of health as a result of his damage to the gastroesophageal Junction sphincter. Diagnostic code 7346 appears to require that each of the rating criteria be met to warrant the 30% evaluation. It is clear that the veteran does not meet each of the five specified criteria. The Board has considered whether an evaluation in excess of 10% would be warranted difficulty swallowing. Moderate stricture of the esophagus warrants a 30% evaluation under diagnostic code 7203. However, no diagnosis of stricture of the esophagus has been assigned. Rather, the veteran has damage to the gastroesophageal junction sphincter, a disorder for which there are no specific rating criteria. Given the persistent nature of the veteran's regurgitation, his difficulties swallowing, and the fact that the veteran suffers regurgitation whenever his head is too low in relationship to the damaged sphincter, it appears to the Board that the veteran's service-connected disability is not so analogous to the rating criteria for hiatal hernia that the 30 percent evaluation is warranted only if each of those criteria are met. It is the Board's judgment that the veteran's disability is equally well evaluated as analogous to stricture, even though it is, in fact, the opposite of stricture. There is no criteria specific to the sphincter damage characterized as GERD and hiatal hernia. The Board finds that, even though some of the rating criteria for a 30 percent evaluation for hiatal hernia are not met, resolving reasonable doubt in the veteran's favor, a 30 percent evaluation is warranted. However, it is clear that an initial evaluation in excess of 30 percent is not warranted. The veteran is able to swallow liquids and solids without choking, so long as he is careful. The record demonstrates that the veteran's weight is normal and that he does not have considerable impairment of health as a result of the GERD and hiatal hernia disability. The record does not suggest that any criterion for an evaluation in excess of 30 percent is met under any of the applicable analogous diagnostic codes. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards, as applied by analogy in the current case, adequately describe and provide for the veteran's symptoms and disability level. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability, resolving in the veteran's favor any question as to whether the veteran might meet the criteria for a 30 percent evaluation which are not addressed in the medical evidence. A rating that is assigned with a grant of service connection must take into account all evidence of the nature and severity of the disability from the effective date of service connection. The veteran's claim for an increased initial evaluation for GERD follows the in initial grant of service connection for that disorder. Thus, the rating might be a "staged" rating, that is, one comprised of successive ratings reflecting variations in the disability's severity since the date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered whether the veteran is entitled to an increased evaluation at any time during the pendency of the appeal, but finds that the veteran's GERD disability, which has been present for many years, remained essentially stable, without such increase or decrease in symptoms as to warrant an evaluation less than or greater than 30 percent during the appeal. Fenderson, supra. In particular, the Board notes that the veteran has not reported symptoms which would warrant an evaluation in excess of 30 percent such as melena, hematemesis, or inability to swallow. The record clearly establishes that the veteran is able to swallow both solids and liquids and has not material weight loss. Therefore, a staged rating in excess of 30 percent is not warranted at any time during the pendency of the appeal. As the evidence is not in equipoise to warrant an evaluation in excess of 30 percent, the statutory provisions regarding resolution of reasonable doubt are not applicable to warrant a more favorable outcome than a 30 percent evaluation for GERD and hiatal hernia. 38 U.S.C.A. § 5107(b). ORDER A 30 percent initial evaluation for gastroesophageal reflux disease (GERD) is granted, subject to law and regulations governing the effective date of an award of monetary compensation. REMAND The RO denied the veteran's claim for service connection for a dental disorder on the basis that the veteran did not incur dental trauma in service. However, the veteran is also entitled to service connection for a dental disorder if he incurred that dental disorder as a result of the medications used to treat his service-connected tuberculosis. This contention must be addressed. 38 C.F.R. § 3.310. The veteran contends that he meets the criteria for a 30 percent evaluation for frostbite of each foot. The claims folder does not contain a report of the VA examination of the feet conducted during the pendency of this claim, although others conducted the same day are of record. There is evidence that the veteran has peripheral neuropathy, so as to meet at least one criterion for a 30 percent evaluation. Radiologic examination prior to the claim underlying this appeal discloses some minimal abnormality of the first metatarsal bones, but it not clear whether that abnormality was medical attributed to the veteran's frostbite or not. Without evaluation of the severity other than in outpatient neurology treatment notes, the Board is unable to determine the current severity. Aphakia is defined as an absence of the lens of the eye. See Stedman's Medical Dictionary 110 (27th ed. 2000). The evidence clearly reflects that the veteran lost the lens of his right eye due to trauma prior to his second period of service and after discharge from his first period of service. However, the current clinical evidence states that a PCIOL (posterior chamber intraocular lens) is present in the veteran's right eye. The veteran contends that this lens was surgically inserted during his service, and that this surgical procedure during service, or another surgical procedure performed during the veteran's service, caused the post-service deterioration of vision in the right eye. A very brief service medical record suggests that a lens was implanted during the veteran's service. As the VA examination in 1954 states that the right lens is absent, the medical evidence as to whether a lens was implanted in the veteran's eye during service is conflicting. Further development, to include ophthalmology review explaining the apparent conflict in the medical evidence, is required prior to a determination as to whether new and material evidence has been received. Accordingly, the case is REMANDED for the following action: 1. In light of the changes in notice requirements under the VCAA during the pendency of this appeal, the veteran should be sent notice advising him that he may submit evidence showing the effects of the worsening or increase in severity of his service-connected disability upon his employment and daily life, and examples of the types of medical and lay evidence the veteran may submit should be provided, and notice of the criteria listed in the applicable Diagnostic Code, and notify the claimant that, should an increase in disability be found, a disability rating will be determined by applying the relevant Diagnostic Code which typically provide for a range in severity of a particular disability from 0 percent to 100 percent, based on the nature of the symptoms of the condition for which disability compensation is being sought and their severity and duration. 2. The veteran's current clinical records form May 2007 to the present should be obtained. 3. The veteran should be asked to provide any post-service private records which might assist him to establish what surgical procedures were performed on his right eye during service, and should be asked to identify post-service dental records. 4. The veteran should be afforded the opportunity to identify or submit any alternative evidence which might assist him to substantiate the claims, including, but not limited to, employment clinical records, insurance records, statements from employers, fellow employees, or others who may have observed the veteran's post-service vision or symptoms relevant to the claims. 5. The veteran should be afforded VA examination of the right eye. The examiner should provide an opinion as to what procedures were performed on the veteran's right eye during service. The examiner should provide an opinion as to when an intraocular lens was implanted in the veteran's right eye, if one is present. The examiner should provide an opinion stating whether it is at least as likely as not (a 50 percent or greater likelihood) that right eye surgery during service was necessary because right eye trauma was aggravated during service, if the examiner determines that one or more surgical procedures was likely conducted on the veteran's right eye during service. If the examiner determines that one or more surgical procedures was likely conducted on the veteran's right eye during service the examiner should also provide an opinion stating whether it is at least as likely as not (a 50 percent or greater likelihood) that right eye surgery performed during service resulted in aggravation of residuals of right eye trauma. The medical basis for all opinions expressed should be discussed for the record. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 6. The veteran should be afforded VA examination as necessary to describe the severity of residuals of frostbite in the right foot and in the left foot. The claims folder should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted to allow the examiner to address each criterion for evaluation in excess of 20 percent, to include whether the veteran manifests tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities. The examiner should describe the severity of each manifestation of frostbite in each lower extremity. The medical basis for all opinions expressed should be discussed for the record. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 7. The veteran should be afforded review of the claims file, including records of post-service treatment of tuberculosis and of dental treatment. The reviewer should provide an opinion as to whether the veteran has a current dental disorder, to include the removal of teeth and need for dentures, as a result of treatment for service-connected tuberculosis. The medical basis for all opinions expressed should be discussed for the record. It would be helpful if the examiner, in expressing his or her opinion, would use the language "likely," "unlikely" or "at least as likely as not." The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 8. The expanded record should then be reviewed to determine whether new and material evidence to reopen the claim for service connection for an eye disorder is present, and, if so, the evidence should be reviewed to determine whether development on the merits is complete. Each claim on appeal should be readjudicated, after completion of the above and any other necessary development. If any claim is not granted to the veteran's satisfaction, the veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify the appellant if further action is required on his or her part. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). MARJOIRIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs