Citation Nr: 1300044 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-22 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial compensable evaluation for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to August 2008. This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The December 2008 rating decision granted service connection for the issue currently on appeal. The Veteran subsequently disagreed with the assigned disability rating and perfected an appeal. In May 2011 the Veteran testified at a personal hearing which was chaired by the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing has been associated with the Veteran's VA claims folder. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). FINDING OF FACT Throughout the period of appeal, the Veteran's GERD has been manifested by periods of pain, nausea, and regurgitation; the GERD has not been manifested by considerable or severe impairment of health. CONCLUSION OF LAW The criteria have been met for an initial rating of 10 percent, but no higher, for GERD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to claims for increased initial evaluations, in cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case as the Veteran has not alleged any prejudice. VA has obtained the Veteran's service treatment records, assisted him in obtaining evidence, and afforded him a physical examination related to the matter on appeal. The Board finds that the examination was thorough and provided adequate clinical findings so as to allow the Board to adjudicate the issue addressed herein under the applicable rating criteria. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. General Laws and Regulations, Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). GERD The RO has evaluated the Veteran's GERD as analogous to a hiatal hernia under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). When an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20. The Board finds that Diagnostic Code 7346 best approximates with the anatomical localization and symptomatology of the Veteran's GERD and that this disability is best evaluated under this Diagnostic Code. Under Diagnostic Code 7346, a 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. A 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. 38 C.F.R. § 4.114. The Veteran received a VA examination in October 2008. The examination report documents that the Veteran had a history of reflux esophagitis and that the claims file was reviewed in conjunction with the examination. At the time of the examination, the Veteran reported that he was treated with 20 mg of Acifex a day. He stated that he occasionally experienced nausea. No history of vomiting, dysphagia, heartburn, regurgitation, or hematemesis was given. The examiner noted that the Veteran had three esophageal dilations in the previous 12 months. No weight change was reported. The examiner further noted that the Veteran worked as a school instructor and had lost no time from work during the prior 12 months due to GERD. The examiner gave a diagnosis of history of esophilic esophagitis and small esophageal web that needed dilation once. In his January 2010 Notice of Disagreement, the Veteran commented that he was still on medication for eosiniphilic esophagitis, and he had to maintain a restricted diet. On his June 2010 VA form 9, the Veteran remarked that he had been on medication and a restricted diet for over three years. During his May 2011 Board hearing, the Veteran testified that he continued to take Aciphex to treat his acid reflux. He described his symptoms as a tightness and fullness in his chest. He said he experienced a pain at the top of his stomach. He said that his symptoms kept him from getting a restful night's sleep. He stated that he could hear a gurgling in his throat at times. He related that he could not eat tomato-based products, citrus-based products, garlic, onions, and caffeine. He recalled undergoing esophagoweb dilation previously. He said that his symptoms were essentially the same as they had been at his prior VA examination. He indicated that when he tried to come off of the medication, his stomach would sour. He described experiencing occasional nausea. He said that he had been employed as an instructor, and getting a good night's sleep was important to maintain his concentration. The Veteran and his representative stated that they would be satisfied with a 10 percent disability rating. In resolving any doubt in the Veteran's favor, the Board finds that a 10 percent evaluation is warranted throughout the period of appeal. In this regard, the Veteran's GERD has consistently manifested by pain and fullness, occasional nausea, and occasional regurgitation, particularly when eating certain foods. Indeed, the Veteran is on continuous medication to treat his symptoms. Significantly, these symptoms cal all be observed through the senses; as such, the Veteran's testimony regarding experiencing these symptoms is competent. The other evidence of record does not appear to contradict the Veteran's report; his statements have been found to be credible. Accordingly, the criteria for a 10 percent evaluation have been approximated. Fenderson, supra. Regardless of the severity and frequency of symptoms, in order to substantiate a higher evaluation either considerable or severe impairment of health must be shown as due to GERD. Clearly, the Veteran's GERD has not had a considerable impact on his health such as to be quantified as considerable or severe. Indeed, the Veteran's GERD is largely controlled by his medication, and always has been. Moreover, VA examination noted that the Veteran's general state of health was good and that his nutrition was well-maintained. Significantly, during his May 2011 hearing, both the Veteran and his accredited representative testified that a 10 percent disability rating would satisfy his appeal. As the evidence of record reflects that the Veteran's GERD symptomatology is mild but not considerable or severe, an evaluation of 10 percent, but no higher, is not warranted. Fenderson, supra. Extraschedular Consideration According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability addressed herein is inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial 10 percent, but no greater, evaluation for GERD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs