Citation Nr: 1305746	
Decision Date: 02/19/13    Archive Date: 02/27/13

DOCKET NO.  10-04 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for neck pain. 

2.  Entitlement to an initial compensable rating for gastroesophageal reflux disease. 


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs

ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 










INTRODUCTION

The Veteran served on active duty from February 1985 to June 2008. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). 

In July 2011, the Board remanded the claims for further development.  On the claim for increase as the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

The claim of service connection for a disability of the cervical spine unrelated to service-connected fibromyalgia is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  Neck pain, including stiffness and paresthesia (numbness), is proximately due to or the result of service-connected fibromyalgia.

2.  Gastroesophageal reflux disease is manifested by symptoms of nausea, dysphagia, pyrosis or burning esophageal sensation, and abdominal tenderness, which is accompanied by substernal, arm, or chest pain without vomiting, hematemesis, melena, or anemia productive of considerable impairment of health. 





CONCLUSIONS OF LAW

1.  The criteria for service connection for neck pain, including stiffness and paresthesia (numbness), due service-connected fibromyalgia have been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2012). 

2. The criteria for an initial rating of 10 percent for gastroesophageal reflux disease have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.7, 4.114, Part 4, Diagnostic Code 7346 (2012). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473, 484-86   (2006). 




As service connection for neck pain as a manifestation of service-connected fibromyalgia has been granted, VCAA compliance need be addressed further as the purpose of the VCAA notice has been fulfilled.

On the claim for increase, the VCAA notice requirements are 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.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The RO provided pre-adjudication VCAA notice by letter, dated in March 2008, on the underlying claim of service connection.  Where, as here, the claim has been granted and the initial rating assigned, the claim has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose of the notice has been fulfilled. 

Once a claim has been substantiated, the filing of a notice of disagreement with the RO's decision as to the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Dingess, at 19 Vet. App. 473. 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. 



On the claim for increase, the Veteran was afforded a VA examination in October 2011.  As the report of the VA examination included a review of the medical history and describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, the VA examination is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim are required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection 

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service) and § 1131 (peacetime service). 

Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).






Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may be granted on a secondary basis for a disability that is proximately due to a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet App. 439 (1995).   

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).






When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b).

Evidence

On VA examination March 2008 before the Veteran retired from service, the Veteran stated that her neck pain began in January 2008 without any defining injury, but she was in physical training when she experienced cervical pain and stiffness with occasional pain into her arms and numbness in her hands.  X-rays were unremarkable.  The diagnosis was a history of recurring neck pain and no pathology to render a diagnosis.  

After service VA records show in January 2009 the Veteran complained of neck pain radiating to her left shoulder and numbness in her arms.  An MRI in February 2009 showed tiny disc protrusions in the cervical spine.  

On VA examination in August 2009, fibromyalgia with musculoskeletal pain, stiffness, muscle weakness, achiness, myalgia, and arthralgia, including in the area of the neck as noted. 


In a rating decision in September 2009, the RO granted service connection for fibromyalgia and assigned a 40 percent rating. 

VA records for 2009 to September 2011 show that the Veteran complained of pain in the cervical spine. 

On VA examination in October 2011, the Veteran complained of tenderness at the base of the neck and radiating to the middle of the back.  History included neck pain and numbness.  The VA examiner stated that the tenderness was a continuation of the already diagnosed fibromyalgia and was another symptom or sign of service-connected fibromyalgia.

Analysis 

The record shows that the Veteran has had recurrent cervical pain, including and stiffness since January 2008 in service and the Veteran is service-connected for fibromyalgia, which encompasses widespread musculoskeletal pain and tender points, stiffness, and numbness.  38 C.F.R. § 4.71a, Diagnostic Code 5025. 

The remaining question is whether cervical pain is proximately due to or the result of service-connected fibromyalgia. 

On VA examiner in October 2011, the VA examiner stated that the cervical tenderness was a continuation of the already diagnosed fibromyalgia and was another symptom or sign of service-connected fibromyalgia.

As the Veteran has recurrent cervical pain, including stiffness and paresthesia (numbness), as the Veteran is service-connected for fibromyalgia, which encompassed the symptoms of widespread musculoskeletal pain and point tenderness and stiffness and paresthesia (numbness), and as there is favorable evidence that the recurrent cervical pain, including point tenderness, stiffness and numbness, are proximately due to or the result of service-connected fibromyalgia, service connection is warranted.  38 U.S.C.A. § 5107(b).


Claim for Increase 

A disability rating is e determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).

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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).

Rating Criteria for Gastroesophageal Reflux Disease 

As there is no specific Diagnostic Code for gastroesophageal reflux disease, gastroesophageal reflux disease is rated by analogy to a hiatal hernia under Diagnostic Code 7346. 





Under Diagnostic Code 7346, the criteria for a 10 percent are two or more of the symptoms for a 30 percent rating of less severity.  The criteria for a 30 percent rating are persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 

Facts 

On VA examination in March 2008, the Veteran described symptoms of heartburn, abdominal pain, and retrosternal chest pain for which a fundoplication procedure was performed to help relieve the symptoms.  The VA examiner reported that the Veteran was currently asymptomatic.  

After service VA records show that December 2008 the Veteran complained of pain in the chest area and arms.  In September 2011, she complained of chest and abdominal pain for which she used medications to control the symptoms.  

In October 2011 on VA examination, the Veteran described symptoms of nausea at every meal, heartburn, and dysphagia.  She denied emesis, vomiting, esophageal distress or dilation, hematemesis, or melena.  On examination, there were no signs of weight loss or malnutrition.  The VA examiner stated that the Veteran's overall general health was fair.  

Analysis 

The Veteran is competent to describe symptoms of persistently recurrent epigastric distress and her symptoms of nausea, dysphagia, burning esophageal sensation or pyrosis, and abdominal tenderness, accompanied by substernal or arm or shoulder pain, which are encompassed in the rating criteria, equate to two or more symptoms of epigastric distress for a 10 percent rating under Diagnostic Code 7346.  




As the symptoms of nausea, dysphagia, burning esophageal sensation or pyrosis, and abdominal tenderness, accompanied by substernal or arm or shoulder pain, do equate to two or more symptoms of epigastric distress that meets the quantitive criteria for the next higher rating under Diagnostic Code 7346, the distinction between the criteria for a 10 percent rating and a 30 percent rating is a qualitative one, that is, the higher rating requires considerable impairment of health. 

As the term "considerable" is not defined in the rating criteria, as a matter of regulatory construction, the word "considerable" is given its ordinary meaning absent persuasive reasons to the contrary.  The word "considerable" in its ordinary usage, means "large in extent or degree."  Webster's New College Dictionary 246 (3rd ed. 2008).  

In this case, the Veteran's overall general health has been described as "fair," which means "moderately good" health.   Webster's at 410.  In this context, "moderately good" health suggests a state of health that is less than good, but not to a large extent, that is, greater than an average degree of impaired health. 

As fair general health does not more nearly approximate or equate to "considerable" impairment of health due to epigastric distress, the qualitative element for the next higher rating, 30 percent, under Diagnostic Code 7346 has not been met. 

There is no other potentially applicable Diagnostic Code. 

Throughout the appeal period, the Veteran has described persistently recurrent epigastric distress, which meets the criteria for a 10 percent rating, but not a higher rating or staged rating.  See Hart at 519. 









Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, it does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. 

There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. 

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366   (Fed. Cir. 2009). 

Here, the rating criteria reasonably describe the disability level and symptomatology, regarding epigastric distress.  In other words, the Veteran does not experience any symptomatology not already encompassed in the rating criteria and the assigned schedular rating is therefore adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). 







Total Disability Rating for Compensation based on Individual Unemployability 

During the appeal period, the RO granted a total disability rating for compensation based on individual unemployability, effective from July 2009.  The Veteran did not disagree with the effective date.  


ORDER

Service connection for neck pain, including stiffness and paresthesia (numbness), due to service-connected fibromyalgia is granted. 

An initial rating of 10 percent for gastroesophageal reflux disease is granted.


REMAND

On the claim of service connection for a cervical spine disability unrelated to service-connected fibromyalgia, after service VA records show that in January 2009 the Veteran complained of neck pain radiating to her left shoulder and numbness in her arms.  An MRI in February 2009 showed tiny disc protrusions in the cervical spine, which the radiologist stated explained the Veteran's symptoms of neck pain with numbness, which preceded the diagnosis of fibromyalgia.  

On VA examination in October 2011, the VA examiner stated that the Veteran's neck pain was a continuation of fibromyalgia. 

As the evidence of record is insufficient to decide the claim of service connection for a cervical spine disability unrelated to service-connected fibromyalgia, additional development under the duty to assist is needed. 


Accordingly, the case is REMANDED for the following action:

1.  Arrange to have the Veteran's file reviewed by a VA physician to determine:

Whether the findings of tiny disc protrusions and endplate degenerative changes in the cervical segment of the spine by MRI by VA in February 2009 represented degenerative disc disease or degenerative joint disease unrelated to fibromyalgia.

2.  After the above development, adjudicate the claim of service connection for a disability of the cervical spine other the disability associated with service-connected fibromyalgia.  If the benefit sought on appeal is denied, then furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The 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).



____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs