Citation Nr: 1237608 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-20 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to July 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Regarding the Veteran's claim for service connection for GERD, the Board notes that the Veteran filed a timely notice of disagreement with the May 2009 rating decision. However, in his April 2010 substantive appeal, the Veteran's previous representative indicated that the Veteran only wanted to appeal the issue of entitlement to a TDIU. At his January 2012 hearing, the Veteran and his current representative stated that he in fact desired to appeal the denial of his claim for service connection for GERD. In Rowell v. Principi, 4 Vet. App. (1993), it was held that the failure to file a timely substantive appeal did not foreclose an appeal, render a claim final, or deprive the Board of jurisdiction. The Board notes that despite the lack of a substantive appeal for the issue of service connection for GERD in April 2010, as the Veteran has indicated that he wishes to appeal this issue, the claim of entitlement to service connection for GERD is currently before the Board. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's GERD originated during his active service. 2. The Veteran's service-connected disabilities are assigned a combined rating of 70 percent and are sufficient by themselves to render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. GERD was incurred in active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). 2. The criteria for a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of these claims. In addition, the evidence currently of record is sufficient to substantiate his claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011). Entitlement to service connection for GERD. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records are negative for evidence of GERD. The Veteran has contended that his current GERD is a result of his service-connected rheumatoid arthritis. He testified that he first developed gastrointestinal issues around 1960 while in service that have continued ever since. He stated that he began taking large amounts of antacids to help with his gastrointestinal pain. In May 1974, the Veteran was admitted to the emergency room with complaints of chest pain. The diagnosis was severe chest pain, rule out myocardial infarction. A May 1976 treatment note indicates that the Veteran was admitted to the emergency room with severe chest pain. The Veteran underwent a VA consultation in July 1976. He presented with complaints of chest pain and a history of prior hospitalizations for chest pain. The treating physician noted that the Veteran had experienced chest pain "on and off for several years" which had no relation to stress or exertion. The physical examination was essentially negative except for tenderness over the chest. The diagnosis was rheumatoid arthritis. In July 1978, the Veteran presented with complaints of severe chest pain. The treatment note indicates that the Veteran had rheumatoid arthritis and was placed on heavy doses of aspirin at one time. The diagnoses were chest pain of undetermined etiology and rheumatoid arthritis. A January 1982 treatment note provides a diagnosis of chest pain secondary to arthritis. The Veteran underwent a VA examination in May 2009. The examiner noted that the Veteran reported that his GERD was due to his intake of 4 aspirin tablets up to 6 times a day for his rheumatoid arthritis for many years. He currently took 1 tablet of prevacid a day. It was noted that he underwent esophageal surgery in 2006. The examiner opined that the Veteran's GERD was not caused by or the result of aspirin that the Veteran ingested for his rheumatoid arthritis. She noted that aspirin or nonsteroid anti-inflammatory drugs (NSAIDS) do not cause GERD. It did not decrease the lower esophageal sphincter pressure which was one of the causes of GERD. In the Board's opinion, the evidence supportive of the Veteran's claim is in equipoise with that against the claim. In this regard, the Board has found the Veteran's testimony concerning the onset of his GERD symptoms in service and a continuity of those symptoms after service to be credible. Although the VA examiner has opined that the GERD is not related to aspirin taken for the Veteran's service-connected rheumatoid arthritis, she did not opine that the disability is unrelated to service. The record documents that the Veteran consistently presented with complaints of chest pain which he indicated began while in service. Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection is in order for GERD. Entitlement to a TDIU Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body 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), 4.15 (2011). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities resulting from common etiology are considered as one disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability, "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Factual Background and Analysis The Veteran is service-connected for rheumatoid arthritis of multiple joints. His TDIU claim was received on January 15, 2009. The combined rating for his rheumatoid arthritis of multiple joints has been 70 percent from that date. He accordingly meets the schedular criteria for a TDIU, and the Board's consideration thus turns to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board need not discuss the GERD which has not yet been rated by the originating agency and is not a basis of the Veteran's claim for a TDIU. The Veteran contends that his service-connected rheumatoid arthritis prevents him from securing or following any substantially gainful occupation. He reported that he worked as a truck driver but had to stop working in 2002 due to his service-connected disabilities for which he is receiving Social Security disability compensation. A July 1995 private physical therapy note reports that the Veteran claimed that he was unable to work as a truck driver as he was unable to shift because of his upper extremity pain. A March 1998 private medical report completed in conjunction with a Social Security determination notes that the Veteran was restricted in his ability to work and, "would be unable to perform any repetitive activities using the upper extremities". The Veteran underwent a VA examination in February 2009. The examiner noted that the Veteran retired from work as a truck driver in 1997 and received Social Security disability as a result of his rheumatoid arthritis. In January 2012, the Veteran testified that he is unable to work due to his service-connected disabilities. He testified that when he had a flare-up of the rheumatoid arthritis of multiple joints, he became completely incapacitated and unable to work. When this happened, it was impossible to gauge how long the incapacitation would last. On review of the evidence outlined above, to specifically include the Veteran's January 2012 testimony and the report of the private physician in July 1995, and the report of the VA examination in February 2009, the Board finds the evidence shows the Veteran's service-connected disabilities render him unemployable. Specifically, the Board notes that the July 1995 physician noted that the Veteran was restricted in his ability to work and he would be unable to perform repetitive activities as a result of his service-connected upper extremity disabilities. Additionally, the Veteran has consistently contended that these disabilities have made him unable to perform his duty as a truck driver. Additionally, the February 2009 VA examiner noted that the Veteran retired and received Social Security disability as a result of his service-connected disabilities. The Veteran also testified that he was not able to work as a truck driver because of incapacitation that resulted from flare-ups of his rheumatoid arthritis. Based on this scenario for a suitable work setting, the VA examiner and private medical evidence, and the Veteran's testimony, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected rheumatoid arthritis of multiple joints. Accordingly, the criteria for a TDIU are met. ORDER Entitlement to service connection for GERD is granted. Entitlement to a TDIU is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs