Citation Nr: 1007156 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-17 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). 2. Entitlement to an initial compensable rating for sinusitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran served on active military duty from February 1984 to September 2005. The appeal comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the claims file reflects that the Veteran has suffered from esophageal stricture, with dilatations performed in October 2006, January 2007, and January 2008. However, while he has asserted that this stricture and associated symptoms are supportive of his claim for a higher initial evaluation for GERD, the Veteran has not been service connected for esophageal stricture. Stricture of the esophagus may be assigned a disability rating under Diagnostic Code (DC) 7203 separate and distinct from that for GERD, whereas here the Veteran's GERD is appropriately rated under DC 7346 for hiatal hernia. See 38 C.F.R. § 4.114 (2009). The Veteran's contentions and submitted medical evidence may thus be interpreted as an informal claim for service connection for esophageal stricture. Accordingly, that informal claim for service connection for esophageal stricture is referred to the RO for appropriate action. The Board notes that the Veteran failed to timely file a substantive appeal as to the initial rating claims for GERD and sinusitis, following the RO's issuance of a Statement of the Case (SOC) in August 2006. Rather, he filed a VA Form 9 seeking to perfect an appeal in June 2008. VA law and regulations dictate rules governing initiating and perfecting an appeal to the Board. An appeal to the Board consists of a timely filed Notice of Disagreement (NOD) in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.200 (2009). After a timely NOD is filed, the RO is to take such review action as is appropriate and, if the matter is not resolved to the claimant's satisfaction, issue a Supplemental Statement of the Case (SSOC). 38 C.F.R. § 7105(d); 38 C.F.R. §§ 19.26, 19.29, 19.30. Once an SOC is issued, the claimant must then file a Substantive Appeal within 60 days from the date the SOC is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). The United States Court of Appeals for Veterans Claims (Court) has held that untimely filing of a VA Form 9 may be considered a failure to perfect an appeal. YT v. Brown, 9 Vet. App. 195 (1996); see also Mason v. Brown, 8 Vet. App. 44, 54 (1995) (citing Roy v. Brown, 5 Vet. App. 554, 555 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992) (where a claimant did not perfect an appeal by timely filing a substantive appeal, RO rating decision became final); see also 38 C.F.R. § 19.32 (agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to an SOC within the period allowed, and, if appellant files substantive appeal within the one-year period, the appeal will be reactivated). However, more recent caselaw indicates that failure to timely file a substantive appeal, or VA Form 9, does not act as a bar to the Board's jurisdiction over the claim. Rather, where, as in this case, the RO does not close the appeal but rather treats an untimely substantive appeal as timely, the Board may accept the appeal as perfected, and take jurisdiction of the claims as having been properly appealed. Percy v. Shinseki, 23 Vet. App. 37 (2009); see also Rowell v. Principi, 4 Vet. App. 9, 17 (1993) (holding that lack of timely filed substantive appeal does not deprive Board of jurisdiction over appeal initiated by timely NOD); Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that the Board has an obligation to read the appeal filings in a liberal manner, regardless of whether the claimant is represented by a competent attorney). In this case, following the untimely VA Form 9 filing in June 2008, the RO in August 2008 issued an SSOC treating the claims as if they had been perfected, and in September 2008 issued a notice to the Veteran of certification and transfer the Veteran's case to the Board. Thus, the RO clearly treated the claims as having been perfected in their appeal to the Board, and provided notice to the Veteran of their being properly in appellate status for review by the Board. Accordingly, the Board treats these claims for higher initial evaluations for GERD and sinusitis as having been properly perfected, based on their acceptance by the RO as properly perfected. The Board thereby accepts jurisdiction over the claims. See Percy, supra. Conversely, the Veteran also initiated an appeal of the RO's March 2006 denial of service connection for low back strain. However, he did not express a desire to appeal that claim in his VA Form 9 submitted in June 2008, and in an August 2009 Informal Hearing Presentation the Veteran's authorized representative advised that the Veteran by that VA Form 9 indicated that he did not desire to pursue his appeal of that issue. Accordingly, while that issue was also treated as timely perfected by the RO, the Veteran and his authorized representative have in fact submitted no document which could serve to perfect the appeal of that issue, and do not desire to pursue that appeal. Accordingly, the Board treats that claim as not having been perfected, and does not accept jurisdiction over that claim. 38 U.S.C.A. §§ 7104, 7105. The issue of entitlement to a higher initial evaluation for sinusitis is herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notice when further action is required by the appellant. FINDINGS OF FACT 1. For the entire initial rating period beginning October 1, 2006, the Veteran's GERD has been manifested by dysphagia, pyrosis, or regurgitation, with at least two of these being present, but without significant epigastric distress, accompanying substernal or arm or shoulder pain, and without production of considerable impairment of health. Also absent for the entire rating period have been symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 2. The Veteran, through his authorized representative, has indicated that by his appeal he seeks an initial rating of 10 percent for his GERD. CONCLUSION OF LAW For the entire claim/appeal period beginning October 1, 2005, the criteria for a disability rating of 10 percent, but no more, are met for GERD. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7346 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2008). This notice must be provided prior to an initial 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in an SOC or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). VCAA notice is not required with respect to every issue raised by a claimant. If, for example, a veteran files a claim for service connection for a disability, he is provided with VCAA notice as to that claim, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher (initial) rating and/or an earlier effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006) (holding that, when a claim for service connection has been proven, the purpose of 38 U.S.C.A. § 5103(a) has been satisfied and the requirement of notice under its provisions has been satisfied). Here, the Veteran's appealed claim for higher initial rating for GERD falls squarely within the pattern above. Thus, no additional VCAA notice was required with respect to that appealed issue. Furthermore, in the course of appeal, following the Veteran's NOD as to the appealed March 2006 rating action granting service connection for that disorder, the RO issued VCAA letters in March 2006 and June 2008 addressing the claims for higher initial evaluations including for GERD. In these letters, the Veteran was informed of the notice and duty-to-assist provisions of the VCAA, and was informed of the information and evidence necessary to substantiate the claims for higher initial ratings, and this notice was prior to readjudication of the claim by SSOCs in March 2008 and August 2008. These VCCA notice letters told the Veteran that it was ultimately his responsibility to see that pertinent evidence not in Federal possession was obtained. The Board further finds that the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, and associated all records obtained with the claims folders. Service treatment records were also obtained and associated with the claims file. The RO also informed the Veteran including by the appealed rating action, by the SOC, and by SSOCs, of records obtained, and thus by implication of records not obtained, in furtherance of his GERD initial rating claim. No further statement has been received by the Veteran indicating the existence of additional pertinent evidence not requested. Records of post-service treatment have been associated with the claims file. The Veteran was afforded an opportunity to address his claims, and did so by submitted statements. The case presents no reasonable possibility that additional evidentiary requests would further the appealed claims. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. While it is true that the Veteran submitted additional evidence in December 2008 without waiver of initial review of that evidence by the RO prior to appellate review of the claim by the Board, it is also true that the Veteran, through his authorized representative in an August 2009 Informal Hearing Presentation, informed that the Veteran sought a 10 percent evaluation for his GERD. Because the Board herein grants that 10 percent evaluation for the entire rating period, no still higher evaluation remains the subject of appellate controversy in this case, and hence there remains no case in controversy as to a claim for which the Veteran seeks benefit in this appeal. A Veteran is only presumed to seek the highest possible evaluation for a disorder when he or she has not expressly indicated otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). In short, in this case, with regard to the initial rating claim herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the initial rating assigned for period beginning October 1, 2005. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). A VA examination for compensation purposes was conducted in January 2006, addressing disabilities including the Veteran's GERD. The Board finds that this examination, taken together with records of post-service private treatment including as submitted by the Veteran and the Veteran's own submitted statement, as discussed infra, is adequate for the Board's adjudication herein. The Veteran was duly afforded the opportunity to produce additional evidence to support his claim, and the private medical evaluations of his GERD including particularly in November 2008 adequately provide additional evaluation of the GERD for rating purposes. Thus, the Board determines that the evidentiary record is adequate, and the only significant medical question remaining pertaining to the Veteran's claims for higher initial ratings - that of objective or corroborating evidence of greater disability - was in this case, based on development already undertaken, the responsibility of the Veteran. A remand for a further examination would not present a reasonable possibility of affording a better picture of the nature and severity of the claimed GERD over the rating period, because adequate examinations have already been performed without findings indicating significant ambiguity in the record or the likelihood of greater severity of disability being discovered. See 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition"). Moreover, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice, and any presumption of error as to the first element of VCAA notice has been rebutted in this case. See Shinseki v. Sanders, supra. In sum, the Board concludes that all required notice and development assistance has been afforded to the appellant. II. Entitlement to a Higher Initial Evaluation for GERD Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. Part 4 (2009). Staged ratings are to be considered for assigning initial ratings downstream of grants for service connection, beginning from the effective date of service connection, as in this case with these claims for bilateral knee and left ankle disorders. Fenderson v. West, 12 Vet. App 119 (1999). When there is a question as to which of two evaluations shall be applied, 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 (2009). These ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § § 4.1, 4.10. Medical evidence is generally required to establish a medical diagnosis or to address other medical questions, and lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran seeks a higher initial evaluation for his GERD for the entire rating interval beginning from the October 1, 2005, date of service connection, above the noncompensable (0 percent) rating assigned. The Veteran, through his authorized representative in the submitted Informal Hearing Presentation in August 2009, has clarified that he seeks a 10 percent initial disability evaluation for this disorder. In that regard, the Board notes that a Veteran is presumed to seek the highest possible evaluation for a disorder unless he or she expressly indicates otherwise. AB, supra. Ratings under Diagnostic Codes 7301 to 7329, inclusive, DCs 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. 38 C.F.R. § 4.114. Under Diagnostic Code 7346, hiatal hernia, a 30 percent evaluation is warranted for a 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; with two or more symptoms for the 30 percent evaluation of less severity, a 10 percent evaluation is assignable. A 60 percent evaluation is in order 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. 38 C.F.R. § 4.114, DC 7346. In his NOD submitted in April 2006, the Veteran informed that he was taking medication for his GERD, and that his physician had increased that medication because he was awakening at night with reflux pain. The Veteran has informed in his VA Form 9 submitted in June 2008 that he takes medication and has changed his eating habits in an attempt to control his GERD. He then further informed that he also sleeps in a head-elevated position to avoid nighttime regurgitation, but nonetheless experiences regurgitation when asleep at night once every one to two weeks. Submitted private medical records inform of ongoing GERD treatment with symptoms of reflux, pyrosis, and dysphagia. However, the dysphagia is associated in the clinical records with an esophageal ring stricture which has not been service connected, an informal claim for which the Board has referred to the RO for appropriate action, addressed in the Introduction, supra. That dysphagia, and not the GERD, necessitated invasive surgery in October 2006, January 2007, and January 2008 consisting of balloon dilatation to afford relief from the esophageal stricture. The Veteran submitted a one-month log of symptoms from September to October of 2008, in which he documents ongoing symptoms of reflux and pyrosis, as well as stricture interfering with or causing difficulty in consuming/swallowing various foods. The Veteran's statements and treatment records during the rating period inform of some dysphagia and pyrosis on an ongoing basis, thus warranting a 10 percent evaluation during the entire initial rating interval. Some nighttime regurgitation has also been asserted. However, neither substernal or arm or shoulder pain nor considerable impairment of health have been shown as associated with the GERD. Hence, the Board finds that the evidence preponderates against a showing of the requisite criteria for a still higher, 30 percent evaluation for GERD over any initial rating interval, and that higher rating over any interval is thus not warranted. DC 7346. The requirements for a 60 percent evaluation are also not met over any interval within the rating period. In addition, as noted supra, the Veteran, through his authorized representative, has clearly expressed that only a 10 percent evaluation for his GERD is sought in the claim the subject of this appeal. AB. The Board has considered staged ratings in this case, but finds that during no interval during the initial rating period did the evidence preponderate in favor of assigning the next-higher, 30 percent evaluation for GERD, and during no such interval was the evidence in equipoise for that purpose, but rather the evidence consistently preponderated against assignment of the next-higher evaluation, without the requisite symptoms including considerable impairment of health shown to support that rating. Diagnostic Code 7346; Fenderson. ORDER A 10 percent initial evaluation is granted for the Veteran's GERD for the entire initial rating period. REMAND The Veteran's sinusitis was evaluated upon VA examination for compensation purposes in January 2006, and that examiner reviewed CT findings as well as the Veteran's history, and conducted an examination of the Veteran. The examiner found some signs and symptoms of disease, including a mucous retention cyst of the left maxillary sinus and mucosal thickening of the right maxillary sinus, but no significant nasal obstruction and a history of relatively limited sinus- related symptomatology over the past year. However, since that time the Veteran has submitted statements informing of increased symptoms, including an April 2006 statement informing of recurrent sinusitis requiring two courses of antibiotic treatment since the prior October, and a June 2008 statement (accompanying his VA Form 9) informing of daily symptoms of interference with breathing at night and resulting daily fatigue. The Veteran's authorized representative informed in the submitted August 2009 Informal Hearing Presentation that the Veteran contended that his sinusitis had increased in severity and therefore requires that he be medically re-evaluated. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4). Further, the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. Request that the veteran provide information about all instances of medical treatment (source, location, and dates of treatment) for sinusitis and other respiration-related difficulties for which records are not already documented in the claims file. After securing the necessary authorization, the RO should request all such records not yet obtained, and all attempts in this regard should be annotated for the file along with the results of the search for evidence. 2. Thereafter, afford the veteran an examination by a VA examiner with appropriate expertise, to address the nature and severity of current sinusitis. The claims folders, to include this Remand, must be made available to the examiner for review in conjunction with the examination. Any necessary and non- invasive tests and studies should be conducted. The VA examiner should note the veteran's history of sinus disability, the prior VA examination for compensation purposes in January 2006 and subsequent treatments, the Veteran's own contentions and their credibility or lack of credibility (if so indicated), and any other relevant evidence within the claims file. The examiner should then appropriately address standardized questions pertaining to sinusitis, and provide a complete explanation for all findings and conclusions. 3. Thereafter, the RO/AMC should readjudicate the remanded claim de novo. If any benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs