Citation Nr: 1306845 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-04 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for temporomandibular joint pain. 2. Entitlement to service connection for a left wrist disability. 3. Entitlement to service connection for allergic rhinitis. 4. Entitlement to higher initial ratings for gastroesophageal reflux disease (GERD), evaluated as noncompensably disabling prior to April 14, 2009 and as 10 percent disabling from that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1986 to January 1989 and from September 1989 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his wife testified before the undersigned Veterans Law Judge at the RO in December 2012. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. In December 2012, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his claims of entitlement to service connection for temporomandibular joint pain, a left wrist disability, and allergic rhinitis. 2. For the period prior to April 14, 2009, GERD was manifested by pyrosis and dysphagia. 3. For the period from April 14, 2009, GERD is manifested by recurrent epigastric distress, pyrosis, dysphagia, and substernal shoulder pain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of entitlement to service connection for temporomandibular joint pain, a left wrist disability, and allergic rhinitis by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. For the period prior to April 14, 2009, the criteria for a 10 percent evaluation for GERD have been met. 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). 3. For the period from April 14, 2009, the criteria for a 30 percent evaluation for GERD have been met. 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 CONCLUSIONS Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn the appeal with respect to service connection for temporomandibular joint pain, a left wrist disability, and allergic rhinitis. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues. Evaluation of GERD Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. In August 2007 the Veteran was notified of the evidence necessary to support a claim for service connection, and was told how VA would assist him. He was also advised of the manner in which VA determines disability ratings and effective dates. The Veteran acknowledged that he had been notified of the evidence necessary to substantiate his claim and of the assistance VA would provide. He indicated that he had no other information or evidence to provide. In November 2009 the Veteran was advised of the status of his claim. The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. The Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection for GERD. In Dingess, the Court of Appeals for Veterans Claims held that in cases 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to VA's duty to assist, the Board notes that service treatment records, private records, and VA treatment records have been associated with the claims file. A VA examination was conducted. The Board finds that the examination report is adequate in that the examining physician reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing her conclusions. The examination report of record is thorough and consistent with contemporaneous treatment records, and adequately responds to the questions posed in this appeal. The Veteran has not identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. As noted, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer 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 and asked questions specifically regarding the elements necessary to establish the benefit sought. 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 he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence 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). For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted, and has applied such ratings as set forth below. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. The Veteran's GERD is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7346, for hiatal hernia, by analogy. 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. Service treatment records reflect that the Veteran was treated for acid reflux in August 2007. At that time, the Veteran reported reflux symptoms with burning in his chest and difficulty swallowing since the previous year. He noted that he had tried over the counter medication with minimal relief. He stated that most foods gave him problems. Zantac was prescribed. On VA general medical examination in September 2007, the Veteran's history was reviewed. He reported that Zantac did not help his symptoms. The diagnosis was GERD. Post-service records from Darnall Army Community Hospital indicate that the Veteran sought treatment in April 2009 for his GERD, noting that it was not responding well to medication. An additional April 2009 record indicates a complaint of chest pain with a normal echocardiogram. In May 2009 the Veteran endorsed right sided chest pain that was relieved with burping. He also reported heartburn. In June 2009 the Veteran reported epigastric pain and bloating after eating. He indicated that while medicine helped his reflux, he continued to have epigastric pain and bloating for up to two hours after eating. A private Esophagogastroduodenoscopy (EGD) report dated in January 2010 indicates an impression of grade I esophagitis, normal stomach, and status post savary dilation. Records from Darnall indicate the Veteran's report of dysphasia with onset in March 2010. A March 2010 treatment note indicates that the Veteran had undergone three normal EDG procedures, the most recent after onset of dysphasia. The Veteran reported an eight pound weight loss. In April 2010 a provider indicated that there was no upper aerodigestive tract abnormality to explain the acute onset dysphasia; the Veteran was referred to speech therapy for evaluation and treatment. In June 2010 the Veteran reported that his swallowing had slightly improved. The provider noted that the Veteran had started swallowing exercises. In October 2010 a provider noted that the Veteran was mildly improved overall but that the still could not eat large bites of solid foods. In August 2011 the Veteran reported frequent heartburn not relieved by medication. He denied nausea, vomiting, abdominal swelling and pain, jaundice, and pain with bowel movements. An additional EGD was carried out in September 2011. A small nodule was found in the middle third of the esophagus; the esophagus was otherwise normal. The stomach and duodenum were normal. An additional VA examination was carried out in May 2012. The Veteran reported daily bloating and excessive flatulence throughout the day. He endorsed heartburn with right shoulder pain. He noted that when he ate, food seemed to stay in the upper esophagus. He denied choking, gagging, and vomiting. The examiner noted that the Veteran was prescribed Nexium. She noted that the Veteran experienced persistently recurrent epigastric distress, pyrosis, substernal arm or shoulder pain, and nausea. She indicated that the Veteran had moderate esophageal stricture and had been dilated about four times since his previous examination. At his December 2012 hearing, the Veteran testified that his current symptoms included difficulty swallowing. He noted that he had significant gas with all foods. He indicated that he also experienced regurgitation and reflux. He stated that he had lost 10 pounds. He noted that his prescribed medications did not provide complete relief. He testified that his symptoms occurred daily. Having carefully reviewed the record, the Board finds that for the period prior to April 14, 2009, a 10 percent evaluation is warranted for GERD. In that regard, the record reflects that during this time the Veteran experienced epigastric distress and heartburn during this time. Such supports a 10 percent rating. A higher, 30 percent evaluation requires evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. This is not shown by the evidence pertaining to the period prior to April 14, 2009. Rather, the record reflects reflux symptoms and problems swallowing reported in 2007, during service. On discharge examination in August 2007, the Veteran reported frequent heartburn and indigestion. In essence, the record does not demonstrate symptoms productive of considerable impairment of health necessary to support the higher 30 percent evaluation. As such, the Board finds that a 10 percent evaluation is appropriate for the period prior to April 14, 2009. The Board has also determined that for the period from April 14, 2009, a 30 percent evaluation is warranted. As noted, the Veteran sought treatment at Darnall in April 2009, reporting chest pain, heartburn, epigastric pain, and bloating. In March 2010, the Veteran reported onset of dysphagia. Frequent heartburn is also noted. On VA examination in May 2012, the Veteran reported heartburn with right shoulder pain. The examiner noted persistently recurrent epigastric distress, pyrosis, substernal shoulder pain, and nausea. She also noted that the Veteran had moderate esophageal stricture. Moreover, at his December 2012 hearing, the Veteran reported a 10 pound weight loss and indicated that he had daily symptoms that affected his life. In light of this evidence, the Board concludes that the Veteran's GERD symptoms from April 14, 2009 more closely approximate the criteria for a 30 percent evaluation. However, in the absence of evidence of material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health, the Board finds that the criteria for the higher, 60 percent evaluation are not met or approximated. The Board notes that the Veteran is competent to report that his disability is worse. Nevertheless, both the lay and medical evidence of record demonstrate that the evaluations assigned herein fully contemplate the severity of the Veteran's GERD pursuant to the established schedular criteria, throughout the appeal period. Extraschedular Consideration Ordinarily, the VA 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). 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. See 38 C.F.R. § 3.321(b)(1) (2012); see also 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 Veterans 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, 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 initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected GERD. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disability is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. Even still, the record does not show that the Veteran has required hospitalization, or has lost significant periods of work, due to his GERD. In short, the evidence does not support the proposition that the Veteran's service connected disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). ORDER The claim of entitlement to service connection for temporomandibular joint pain is dismissed. The claim of entitlement to service connection for a left wrist disability is dismissed. The claim of entitlement to service connection for allergic rhinitis is dismissed. For the period prior to April 14, 2009, an evaluation of 10 percent for GERD is granted, subject to the controlling regulations applicable to the payment of monetary awards. For the period from April 14, 2009, an evaluation of 30 percent for GERD is granted, subject to the controlling regulations applicable to the payment of monetary awards. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs