Citation Nr: 1237488 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 07-03 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from May 1994 to October 1997. This matter is on appeal from an October 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified before the undersigned Veterans Law Judge in September 2008. A transcript of the hearing is of record. This case was remanded by the Board most recently in November 2010 for further development and is now ready for disposition. FINDINGS OF FACT 1. GERD was not incurred in or aggravated by service and is not related to service, nor is it related to a service-connected disability. 2. The evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. It also acquired treatment records from the Social Security Administration (SSA). Further, the Veteran submitted private treatment records. 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 claim that has not been obtained. Next, VA examinations with respect to the issues on appeal were obtained in December 2005 and December 2010. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full understanding of the Veteran's disability picture. They consider all of the pertinent evidence of record and the statements of the appellant, and provide adequate rationales for any conclusions stated. Recognition is given to the fact that the most VA examination addressing TDIU is now approximately seven years old. However, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since these VA examinations, and he has not contended otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, a discussion of the Veteran's September 2008 hearing is necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Specifically, entitlement to service connection for GERD and TDIU were identified as issues, even though it was not actually on appeal at that time. The Veteran was also advised of what type of evidence he would need to support his claim, especially the need for a physician's opinion. Moreover, in August 2010, the Veteran was offered the opportunity to testify at a second hearing before a Veterans Law Judge. However, he failed to report. Nevertheless, the Board concludes that its duty to assist has been met in this regard. See Id.; 38 C.F.R. § 20.700 (2012). Finally, it is noted that this appeal was remanded by the Board in March 2009 and again in November 2010. In the March 2009 Remand, the Board instructed the RO to issue a statement of the case addressing the Veteran's GERD and TDIU claims. In the November 2010 Remand, the Board instructed the RO to obtain the Veteran's SSA records and to schedule the Veteran for a VA examination addressing his GERD claim. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). First, the RO acquired the Veteran's SSA records, and he underwent a VA examination in December 2010 which, as stated above, the Board finds adequate for adjudication purposes. After the required development was completed, the issues were readjudicated and the Veteran was sent a supplemental statement of the case in April 2012. Accordingly, the Board finds that the March 2009 and November 2010 Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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 v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, it is the Veteran's primary assertion that his GERD developed due to the medication he takes for his depression and for his service-connected lumbar spine disorder. It should be noted at the outset that, as the Veteran is not service-connected for any psychiatric disorder, the impact of that disorder cannot be considered when determining whether service connection for GERD is warranted. As to the issue of whether the Veteran's GERD is attributable to his service-connected lumbar spine disability (which is his only service-connected disability), the Board determines that the evidence does not establish such a relationship. Significantly, the Veteran underwent a VA Examination in December 2010 in order to specifically address this question. There, the he reported taking non-steroidal anti-inflammatory (NSAID) drugs such as Motrin or Flexeril for his low back symptoms since the time he was on active duty in 1997. However, there were no indications of GERD-related symptomatology until 2003 at the earliest. The first complaints actually noted in the record were not until 2005. While he indicated that his GERD was exacerbated by spicy foods, his symptoms were well controlled by the use of omeprazole, a gastroesophageal symptom controlling agent. Upon completion of this examination, the VA examiner diagnosed GERD. However, the examiner opined that it was "not at least as likely as not" that the Veteran's GERD was related to the treatment he receives for his lumbar spine symptoms. In providing this opinion, the examiner reflected that, while the use of NSAID can aggravate GERD, the Veteran has a number of other risk factors for developing GERD, including excess weight, hiatal hernia, and psychotropic drug use. Moreover, only the Veterans weight and hiatal hernia have been persistent factors in this case. The Board finds this opinion adequate for VA adjudication. Specifically, the examiner was able to provide this opinion based on a thorough understanding of the Veteran's medical history, to include a review of the claims file and interview with the Veteran. Moreover, the examiner provided an adequate reasons and bases for all opinions rendered, referring to specific evidence in the claims file. Therefore, the VA examiner's opinion is afforded high probative value. In addition to the VA examiner's observations, the evidence of record reflects an apparent correlation between the Veteran's GERD symptoms and his use of the psychotropic drug citalopram. For example, in October 2005, he specifically stated that the citalopram was hurting his stomach, but the symptoms were lessened if he took smaller doses more frequently. Significantly, he did not attribute his GERD to the medication he was taking for his lumbar spine symptoms. Therefore, since the Veteran is not service-connected for his psychiatric disorder, and since the evidence does not indicate that his GERD is attributable to his service-connected lumbar spine disability, service connection is not warranted on this basis. Next, even though the Veteran's primary assertion has been that his GERD is related to the medication he takes for his various disorders, he is not precluded from establishing service connection with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted for his GERD on this basis. As an initial matter, the Veteran's service treatment records reflect no complaints of, treatment for, or a diagnosis related to GERD while on active duty or any symptoms reasonably attributed thereto. Therefore, GERD was not noted while in service. In fact, the post-service evidence does not reflect symptoms related to GERD for many years after service discharge. Specifically, GERD was not clinically treated until August 2005, although he has stated that it began in approximately 2003. Nevertheless, even if his GERD became manifest in 2003, this is still approximately six years after he left active duty. In fact, while there are a number of treatment records of record that were prior to 2003, none of note complaints or symptoms related to GERD. In actuality, the Veteran has not truly asserted that his GERD symptoms have been present since active duty. For example, when he filed his claim July 2007, he specifically stated that it was related to his other "primary" disorders, rather than to active duty. Additionally, at a mental health treatment note from December 2005, he stated that his GERD had been present only for the previous two years. Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's GERD to active duty. Specifically, there is no competent evidence in the record that suggests that the Veteran's GERD is related directly to his active duty service, and no treating physician has proposed that such a relationship exists. In fact, the VA examiner who examined the Veteran in December 2010 also noted that there was "no evidence" that the Veteran's GERD was related directly to his military service. The Board has also considered Veteran's statements in support of his claim, and specifically how he relates it to the medication he is taking for his disorders. The Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his GERD. See Jandreau, 492 F.3d at 1377, n.4. Even though the Veteran may testify about symptoms related to GERD, he is not competent to provide testimony that these symptoms are related to a service-connected disability or active duty service. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's GERD are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), but is determined to be unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the rating boards should refer the claims file to the Director of Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). However, individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; see also Van Hoose, 5 Vet. App. at 375. In this case, the Veteran is service-connected only for a lumbar spine disability, but with a 60 percent disability rating. Thus, since he has a single total disability rating that is 60 percent or greater, the percentage criteria established under 38 C.F.R. § 4.16(a) have been met. Nevertheless, the Board determines that TDIU is not warranted, as the evidence does not indicate that the Veteran is unemployable solely due to his service-connected disability. As an initial matter, the evidence indicates that he was employed until approximately the end of 2005. While he did move from job-to-job prior to this time, it is unclear whether he moved because he was physically unable to perform the work, or just simply did not like the employment. For example, he stated at a VA examination in June 2005 that he has not worked since the previous May because of physical limitations. However, in October 2005, he stated that he left two jobs because of reasons such as disagreements with his supervisor and a desire for more stable hours. Significantly, at a VA examination in December 2005, the Veteran stated that he experiences "daily excruciating pain" in the low back that radiates into the extremities. However, the VA examiner believed that the Veteran's reported symptoms were disproportionate to objective findings, given a relatively normal neurologic examination. Based on these observations, the VA examiner opined that the Veteran was not disabled from employment. Given his relative age, the examiner noted, the Veteran had "ample opportunity" to pursue a different career either outside of law enforcement, or at least a more sedentary position in law enforcement. The Board places significant probative value on the conclusions of the VA examiner in this regard, as the examiner had a full understanding of the Veteran's relevant medical history and was able to perform an adequate examination of the Veteran. Moreover, the examiner was able to provide detailed conclusions based on this examination and supported all conclusions with an adequate rationale. Therefore, this VA examination is of high probative value. Additionally, there is insufficient evidence in the record to suggest that the Veteran's low back disorder has worsened since the December 2005 VA examiner's observations. Specifically, the Board notes that for a 60 percent rating to be warranted, the Veteran must show a history of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243 (addressing intervertebral disc syndrome). For purposes here, an "incapacitating episode" is a "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treated by a physician." Here, there has been no indication that the Veteran's low back disability has become any worse since the time of the December 2005 VA examination, as instances of incapacitating episodes have not been shown. Indeed, in a March 2006 rating decision, the RO proposed to reduce his disability rating, although it ultimately did not. Additionally, during this time, the Veteran typically attributed his lack of employment to his nonservice-connected psychiatric disorder. For example, according to a May 2006 decision which denied VA vocational rehabilitation assistance, the Veteran stated that he "had a hard time showing up for appointments," and that he was "experiencing mental health problems." Moreover, in March 2008, he stated that he was not working mainly secondary to his depression. In fact, in December 2008 he stated that his low back pain had stabilized to the point where he didn't "really notice it anymore." Finally, contrary to what was noted in the April 2012 supplemental statement of the case, the Board notes that the Veteran was found unemployable by the SSA in July 2009. However, while the SSA's determination is probative in the Board's determination, they are not necessarily binding on VA, which is subject to different regulations. Holland v. Brown, 6 Vet. App. 443 (1994). Moreover, the SSA determination is of limited probative value in this case, due to the large impact the Veteran's nonservice-connected psychiatric disorder has his employability. Therefore, the Board finds that the preponderance of the evidence is against entitlement to TDIU. Even though the percentage criteria set forth at 38 C.F.R. § 4.16(a) have been met, the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. In so concluding, the Board has also considered the Veteran's assertions that he is unemployable. As noted above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his service connected disability and whether it makes him unemployable under VA regulations. On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, as the evidence also does not establish that the Veteran is unemployable due to her service connected disability, the appeal is denied. ORDER Service connection for GERD, to include as secondary to a service-connected disability, is denied. Entitlement to TDIU is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs