Citation Nr: 1302863 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 06-08 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease. 2. Entitlement to an increased rating for an anxiety disorder, currently rated 50 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1970. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A December 2004 rating decision assigned an increased 50 percent evaluation for psychoneurosis, anxiety type, manifested by nervous stomach, effective from October 2, 2003, the date of the increased rating claim. A September 2005 rating decision confirmed and continued the 50 percent rating for the Veteran's service-connected psychoneurosis, and denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. A November 2005 Decision Review Officer decision recharacterized the Veteran's psychoneurosis as anxiety disorder and continued the 50 percent disability evaluation. It also granted the Veteran a separate, 10 percent disability evaluation for gastroesophageal reflux disease, effective October 2, 2003. In an April 2009 decision, the Board denied an initial disability rating in excess of 10 percent for gastroesophageal reflux disease, an evaluation in excess of 50 percent for anxiety disorder, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion to Vacate and Remand (Joint Motion) in February 2010. By order dated in February 2010, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. In May 2010, the Board remanded the case for further evidentiary development. The requested development was accomplished and the case was returned to the Board. The Veteran's attorney filed a motion for an extension of time to submit evidence directly to the Board. In August 2012, the Board granted the motion and allowed a 90-day period from the date of the letter for the submission of additional evidence. On November 19, 2012, the Board received correspondence and additional evidence from the Veteran's attorney with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2012). The issues of entitlement to an increased rating for an anxiety disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Throughout the rating period on appeal, the Veteran's gastroesophageal reflux disease causes complaints of nausea, dysphagia, pyrosis, regurgitation, and occasional chest pain; there are no clinical findings of weight loss, anemia, hematemesis, or melena and he is consistently described as in good health. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for gastroesophageal reflux disease have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). VA issued notice letters dated in January 2005, April 2005, and April 2007, from the agency of original jurisdiction (AOJ) to the appellant prior to and subsequent to the rating actions on appeal. These letters informed the appellant of what evidence was required to substantiate his claims; of his and VA's respective duties for obtaining evidence; and how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notices provided is harmless because the claim was readjudicated post remand. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). Again, the Board observes that the Veteran's appeal of the initial rating assigned for gastroesophageal reflux disease is a downstream issue, and additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3) (2012); see Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105 (West 2002). In this regard, according to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Similarly, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, a September 2008 VCAA notice letter provided the Veteran with all of the diagnostic codes and applicable information for his claim for increased disability rating for gastroesophageal reflux disease. The letter included a description of the rating formulas for all possible schedular ratings under the relevant diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the disability evaluations that the RO had assigned. Similar information was provided in the supplemental statement of the case provided to the Veteran. The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non-prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez-Flores, supra. Notably, after this was accomplished, the case was overturned by the Federal Circuit. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Moreover, he is currently represented by an attorney that specializes in veterans law, and neither the Veteran nor his attorney has raised any substantive argument related to a notification failure, including in the Joint Motion for Remand. Accordingly, the Board finds that VA's duty to notify has been met. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, private and VA treatment reports, lay statements, the Veteran's statements, a transcript of the Veteran's and his spouse's testimony before the undersigned Veterans Law Judge, and VA examination reports. The Board notes that the relevant VA examination reports reflect that the examiners reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Specifically, the esophagus and hiatal hernia examination conducted in January 2011 in response to the parties' Joint Motion for Remand and subsequent Court Order, included a discussion of the objective clinical symptoms necessary to rate the Veteran's conditions relevant to the rating criteria for the disability. The Board notes that the case was remanded in part for studies that were discussed in a prior report. However, the examination report specifically notes that the studies listed were not clinically indicated, would not change the Veteran's diagnosis or treatment and would not provide any additional objective information. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that there has been substantial compliance to the development directives requested by the Board in conjunction with this claim and VA's duty to assist has been met. Stegall v. West, 11 Vet. App. 268 (1998). Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1 (2012). See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal. The Veteran's gastroesophageal reflux disease is evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). See 38 C.F.R. § 4.20 (2008) (when an unlisted condition is encountered it will be 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). According to the Diagnostic Code, a 10 percent disability evaluation is assigned for two or more symptoms for the 30 percent disability evaluation for a hiatal hernia, with less severity. A 30 percent disability evaluation is warranted for hiatal hernia where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, which is productive of considerable impairment of health. For the highest, 60 percent disability evaluation, there must be symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severely impaired health. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). Upon reviewing the rating criteria in relation to the objective clinical findings, the Board finds that the Veteran's disability picture is most consistent with the currently assigned 10 percent disability rating; hence, a higher rating is not warranted at any time during the appeal period. Although the Veteran reports persistently recurrent epigastric distress with pyrosis, dysphagia, and regurgitation that is occasionally accompanied by substernal pain, his clinical symptoms are not productive of considerable impairment of health, which is necessary for the next higher 30 percent rating. Upon VA examination in May 2007 VA examination and at his hearing before the undersigned, the Veteran reported that his symptoms were alleviated by medications and diet. Moreover, the record does not document any recent weight loss (in fact, he had gained 10 pounds in the last two years), and there was no history of hematemesis, melena or anemia. An endoscopy in February 2007 was normal with the exception of a small hiatal hernia; and there was no evidence of acid damage. Physical examination revealed normal bowel sounds, a non-distended abdomen, without evidence of aortic bruit, organomegaly, rebound, rigidity, or guarding. The examiner noted that the Veteran was repeatedly stable according to his treatment records and endoscopy, and that his subjective complaints were not supported by the objective clinical evidence. Upon remand, the Veteran was afforded another VA examination in January 2011. The clinician noted that the Veteran had not experienced any recent weight loss, and the only history of hematemesis or melena was back during his military years - which is beyond the rating period at issue here. His private gastroenterologist was contacted with regard to performing other studies that had been recommended on a previous VA examination, but he felt that they were not indicated and would not change the Veteran's treatment for his symptoms. Additionally, there were no signs of malnutrition or anemia - which would be demonstrative of impairment of health. The Veteran's attorney has posited that the Veteran's complaints of diarrhea more than 12 times per week during the January 2011 VA examination demonstrate clinical evidence warranting a higher rating for the service-connected gastroesophageal reflux disease. However, diarrhea is not one of the clinical symptoms listed in Diagnostic Code 7346 and the examiner reported that such complaints were compatible with irritable bowel syndrome - which is not a service-connected disability. In sum, the Board finds that the evidence does not demonstrate that the Veteran's gastroesophageal reflux disease results in considerable impairment in his health. Therefore, his symptomatology most closely fit within the criteria for the currently assigned 10 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7346. Ordinarily, VA's Rating Schedule 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). 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). 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 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 evaluation for the service-connected disabilities are inadequate. The rating criteria outlined above reasonably describe the Veteran's disability level and symptomatology due to his service-connected gastroesophageal reflex disease. Therefore, a further analysis under Thun is not warranted. In conclusion, for the reasons and bases discussed, the Board finds that the preponderance of the evidence is against the claim for a higher rating for the Veteran's gastroesophageal reflux disease on either a schedular or extra-schedular basis throughout the appeal period. Hence, the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 4.3 (2012); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the claim for an initial rating in excess of 10 percent for the disability is denied. ORDER An initial rating in excess of 10 percent for gastroesophageal reflux disease is denied. REMAND As noted in the Introduction above, the Veteran submitted additional evidence directly to the Board with a waiver of RO review. This evidence included an August 2012 letter from Michael L. Cesta, MD, who practices in Woodbury, Minnesota. Dr. Cesta indicated in his report that he reviewed the Veteran's service records, medical records, ancillary information and that he interviewed the Veteran. It is unclear if the interview was conducted by telephone or in-person since the Veteran resides in Massachusetts. In his letter, he concludes that the Veteran's anxiety disorder was "completely disabling . . . beginning immediately after his active duty service . . . "despite the fact that the record shows that the Veteran worked for the U.S. Postal Service for 29 years post-service. Moreover, Dr. Cesta further states that the Veteran became "profoundly" disabled by October 2002 when he developed "progressive irritability, anger, and thoughts of violence during the last year that he was working at the Post Office." He noted that the Veteran reported that he got into a series of arguments with a specific employee culminating in a "severe altercation where he began to harbor thoughts of assaulting the individual in a violent fashion." As such, he could no longer function adequately in an occupational setting and he retired. A review of the file, however, does not reveal that any evidence has been obtained from the U.S. Postal Service to corroborate this information. In light of this evidence, the Board finds that the Veteran should be afforded an opportunity to submit his personnel records from the U.S. Postal Service, or any other evidence in his possession, to corroborate the information reported in Dr. Cesta's August 2012 letter. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is inextricably intertwined with the issue of entitlement to an increased rating for the service-connected anxiety disorder. Hence, the Board may not proceed with appellate consideration of the TDIU claim until the development below is accomplished. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. The RO should obtain the names and addresses of all medical care providers who treated the Veteran for an anxiety disorder since February 2011. After securing the necessary release, the RO should obtain these records. 2. The RO should contact the Veteran and request that he submit records from his personnel file pertaining to his employment with the U.S. Postal Service, including any reports of disciplinary action taken as a result of the altercation he was involved in with another employee, and his retirement paperwork. Any information obtained should be associated with the claims folder. 3. After the development requested above has been completed to the extent possible, the RO should again review the record and readjudicate the claims. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs