Citation Nr: 1309889 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-03 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux (GERD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1966 through August 1969 and June 2005 through May 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The Board notes the Veteran's June 2012 substantive appeal also sought to appeal denial of service connection for sleep apnea. However, in a subsequent rating decision in December 2012 the RO granted service connection and assigned a staged rating of 30 percent effective May 2006 and 50 percent effective March 2007. This decision is considered a full grant of benefits sought, and as such this matter is no longer before the Board. The issues of diabetes, degenerative joint disease in both knees, and seborrheic dermatitis and undiagnosed palmar skin rash are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected GERD did not cause persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health at any point during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(a), 4.114, Diagnostic Code 7399-7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In June 2007 the RO issued a decision which granted service connection for gastroesophageal reflux (GERD) with a noncompesable rating effective May 2006 under an analogous rating to hernia hiatal. 38 C.F.R. § 4.114 Diagnostic Code 7399-7346. In a November 2010 rating decision the RO increased the rating to 10 percent effective May 2006. Id. After review of the record the Board agrees with the RO that an analogous rating under the criteria for hernia hiatal best describes the Veteran's symptoms. As such, use of the analogous rating criteria shall be continued. Under Diagnostic Code 7346, a 10 percent rating is assigned when the Veteran experiences two or more of the symptoms for a 30 percent evaluation with less severity. A 30 percent rating is assigned when the Veteran experiences persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent rating is assigned when the Veteran experiences symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. As discussed above, all evidence since the grant of service connection has been reviewed, and relevant evidence is summarized below. As will be discussed below, the Board finds the evidence of record does not establish a rating in excess of 10 percent is warranted. In March 2006, while still in service, the Veteran completed a medical self-assessment questionnaire. In this report he noted he continued to experience frequent indigestion. In December 2006 the Veteran established care with the VA. At this time he denied most of the symptoms associated with GERD, including nausea, vomiting, diarrhea, and melena, providing evidence against his own claim, however, the Veteran reported occasional heartburn. GERD was included in the list of assessments; however the nurse practitioner (NP) noted his acid reflux was better with medication. The NP noted the Veteran was currently taking omeprazole daily, but has previously been treated with aciphex. The NP recommended the Veteran continue to take his omeprazole twice a day. In June 2007 the Veteran was provided with a VA examination. The Veteran reported symptoms of GERD began during service, including pyrosis, epigastric upset, and sour brash. He stated that after these symptoms developed he began eating a bland diet and taking medication. The Veteran reported that while taking medication he does not experience any significant symptomatology. He specifically denied experiencing hematemesis, nausea, vomiting, melena, and other gastrointestinal discomfort or issues. The examiner's report included a diagnosis of GERD, with no further explanation or description. In his July 2007 written notice of disagreement the Veteran asserted that if he doesn't take his current medication he experiences hematemesis, nausea, and vomiting. He also reported difficulty sleeping due to inflamed acid burning, as well as routinely spitting up brown mucus tainted with blood in the morning. He reported that he receives medication from the VA which he takes "each day and night" to "eliminate the issue." In October 2007 the Veteran returned to the VA for a follow-up. The Veteran denied chest pain, nausea, vomiting, diarrhea, and constipation. The NP opined the Veteran's GERD was well controlled by taking omeprazole twice a day. In July 2008 the Veteran's wife submitted a written statement in support of his claim. She reported that the Veteran coughs up a brown substance laced with red blood first thing upon waking each morning. She also reported efforts to eat early and eat bland meals in order to accommodate the Veteran's condition. She noted that the Veteran sometimes has arm or shoulder pain, and she must assist him in getting dressed. The Veteran's son also submitted a written statement asserting he occasionally helps the Veteran dress as well. The Veteran returned to the VA for a follow up in November 2008 and records indicate the Veteran's GERD was well controlled on his medication, omeprazole. In September 2009 the Veteran testified before the RO regarding his GERD condition. Unfortunately several of the Veteran's statements at the hearing were not recorded in the transcript as they were noted 'inaudible,' however the Board was able to review the majority of the Veteran's testimony. He stated his current symptoms were mostly a chronic sore throat and coughing up a substance each morning out of his throat. He reported this sputum had blood in it. He stated he maintains a bland diet, does not eat later than 7 pm, and takes medication. He also reported elevating his bed in an attempt to alleviate his symptoms. The Veteran reported experiencing discomfort in his arm and shoulders, especially when he coughs. He stated he usually returns to his doctor every four months for treatment of his GERD condition, though sometimes more frequently when his symptoms increase. He reported the doctor checks his blood and weight at these appointments. He asserted his weight has 'bounced up and down' since he began experiencing these symptoms. The Veteran reported the medication he was given while deployed, aciphex, seemed to work better than the medication he receives now, omeprazole. He reported taking his medication twice a day, and additional medication when his symptoms get worse. The Veteran also reported experiencing low energy, and tiring easily. At the hearing the Veteran's representative asserted the Veteran should be entitled to a rating of at least 30 percent based on his symptoms. Records from October 2010 show the Veteran continued to take omeprazole for his GERD, as well as mylanta as needed to help overnight heartburn. Additionally, the Veteran sleeps on an elevated pillow and does not eat after 7 pm. In February 2011 the Veteran's representative submitted a written statement in support of the Veteran's claim. The representative asserted that the Veteran's testimony included complaints of the following GERD symptoms: regurgitation, burning pain, sleeping on an elevated bed, watching his diet, coughing up, and shoulder pain. He asserted the June 2007 VA exam reflected symptoms of heartburn, epigastric upset, sour breath, and required medication. The representative argued these symptoms reflect the Veteran is entitled to a 30 percent rating for GERD. In treatment record from June and September 2011 the Veteran's treating medical professionals opined he should continue on his medication, omeprazole, before meals to treat his GERD. The Veteran was provided with an additional VA examination in October 2011. The examiner reported the Veteran's medical history of GERD consistent with the record, including daily productive cough in the mornings, sleeping on an elevated bed, as well as avoidance of foods which trigger his condition. The examiner also noted over the past six months the Veteran reported his symptoms had gotten worse. The Veteran is now unable to eat after 7 pm, and reports constantly burping. He also now wakes two to three times per night. He reported regurgitation and choking two to three times per week. The Veteran reported an inability to swallow, and feeling like his food is stuck, which occurs with both liquid and solid food. This feeling was usually followed with brief nausea which lasted approximately 15 minutes, but no vomiting. The examiner reported the Veteran still currently takes omeprazole one hour prior to meals, as well as maalox as needed. The examiner found the Veteran has the following symptoms due to GERD: infrequent episodes of epigastric distress, dyshagia, pyrosis, reflux, regurgitation, sleep disturbance caused by esophageal reflux occurring more than four times per year, and lasting less than a day, and periodic nausea occurring more than four times per year and lasting less than one day. The Veteran does not have esophageal stricture or spasm of the esophagus. The examiner noted CBC test and helicobacter pylori were conducted, and the results of the h. pylori test were negative. The examiner noted a history of GERD and indicated she wanted evaluate the Veteran for reflux. In November 2011 the Veteran returned to the examiner who opined the Veteran had a history of GERD but his symptoms were markedly improved with medication. An x-ray of the Veteran's esophagus was conducted and the examiner found no evidence of obstruction or narrowing. Record of a follow-up appointment with the VA from December 2011 opined the Veteran should continue to take his medication, omeprazole, before meals. The Veteran was given another VA examination regarding this condition in March 2012. The examiner reported the Veteran had been diagnosed with GERD in 2005, and experienced acid burning in his throat upon wakening, as well as regurgitation. The Veteran watches his diet, avoids late night eating, and elevates his bed. The examiner reported the Veteran takes continuous medication, omeprazole, for his condition. The Veteran reported he had total relief of symptoms while on aciphex. The examiner found the Veteran had the following symptoms due to GERD: pyrosis, reflux, sleep disturbance four or more times per year, lasting 10 or more days each time. She continued that the Veteran wakes two to three times per night due to acid reflux. The examiner noted the Veteran had morbid obesity and his teeth do not have any erosion of enamel due to chronic reflux or recurrent vomiting. The examiner noted the barium swallow testing conducted in November 2011 revealed no significant reflux and no hiatal hernia. Based on all of the foregoing the Board finds a 10 percent rating is appropriate for the Veteran's GERD during the entire period on appeal. The medical record of evidence does establish that the Veteran continues to have some symptoms of his GERD condition, most notably his daily productive cough, or sputum, each morning which is laced with blood. However, on several occasions throughout the period on appeal the treating medical professionals opined that the Veteran's symptoms are well treated, or nearly resolved with his current medication. For instance, in December 2006 records from the VA reflect the Veteran's GERD condition is better with medication. More persuasively, the Veteran himself even reported on several occasions that his condition is largely resolved with medication. For example, in June 2007 the Veteran reported to the VA examiner that while taking his prescribed medication he does not experience any significant symptomatology. One month later in the written letter to the Board the Veteran wrote that his medication eliminates the issue. As such, the Veteran himself has reported, both to his medical providers and directly to the VA, that his condition is largely resolved with his current medication. These statements by the Veteran provide highly probative evidence that his GERD condition does not result in considerable impairment of his health, such as is contemplated by a 30 percent rating. The record contains evidence that the Veteran's condition worsened in 2011. In October of that year the VA examiner found the Veteran had reported increased symptoms over the previous six months. The Veteran now complained of difficulty swallowing for the first time during the period on appeal, as well as increased interruption of sleep due to his reflux condition. As such, the Board finds the Veteran's symptoms did increase during this period. However, even with his increased symptoms the Veteran's condition still is not as severe as contemplated by a 30 percent rating under the regulations. As discussed above, a 30 percent impairment is warranted when the Veteran experiences persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. The Board does acknowledge that the Veteran's September 2009 testimony, as well as the July 2008 written statement of his wife, establishes that the Veteran does experience arm and shoulder pain. However, the evidence of record does not establish that the Veteran experienced persistently recurrent epigastric distress which is accompanied by the shoulder pain in the description of a 30 percent rating. In October 2011 the VA examiner did indicate the Veteran had infrequent episodes of epigastric distress, but not persistent episodes. In the later examination from March 2012 the examiner did not indicate the Veteran experienced any epigastric distress. Most persuasively, neither examiner selected the box indicating persistent episodes of epigastric distress available on the disability benefits questionnaire. By not selecting such a box, both examiners suggested the Veteran did not experience this criteria. As such, the record does not establish that the Veteran experienced the primary criteria for a 30 percent rating, persistently recurrent epigastric distress, at any point during the period on appeal. The criteria for a 30 percent impairment also describes severe impairment of the Veteran's health. This criteria is also not met by the evidence of record. As discussed above, the evidence of record consistently suggests the Veteran's condition is largely resolved by medication. Even the examiner from the October 2011 noted the Veteran's GERD symptoms were "markedly" improved with medication when the Veteran returned for a follow-up in November 2011. As such, even the examiner who found the Veteran's condition had worsened found these symptoms were greatly improved with medication. Marked improvement does not suggest severe impairment of the Veteran's health. Furthermore, in the most recent relevant medical evidence of record, the VA examination from March 2012, medical testing revealed the Veteran did not experience significant reflux. Therefore the medical evidence suggests the Veteran's GERD has a limited impact on his health when treated with his prescribed medication. As such, the record does not establish that the Veteran's GERD condition has a severe impairment on his health. Based on all of the foregoing the Board finds a rating in excess of 10 percent for the Veteran's GERD condition is not warranted. The evidence of record does not establish the Veteran has persistently recurrent epigastric distress or considerable impairment on his health, both criteria contemplated by the next higher rating, 30 percent. As such, the Veteran's claim for an increased rating is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the medical evidence fails to establish anything unique or unusual about the Veteran's GERD that would render the schedular criteria inadequate. The Veteran's main complaints are pyrosis and regurgitation, both of which are specifically contemplated by the Diagnostic Code. The schedular rating criteria therefore adequately described the Veteran's disability picture, and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the record establishes the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his service connected GERD, but rather he was laid off due to cut-backs at his former place of employment. Furthermore, the examiners of the November 2011 and March 2012 examinations each opined that the Veteran's esophageal condition did not impact his ability to work. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's GERD. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to Veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for GERD was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran testified before the RO. The Veteran was also provided with several VA examinations during the course of this appeal (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of any of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for an increased initial rating for GERD is denied. REMAND In order to appeal a RO rating decision to the Board, certain procedural steps must be followed to grant the Board jurisdiction to review the case. First, once a rating decision is issued, the Veteran or his or her representative must file a timely notice of disagreement (NOD); so long as the issues being appealed are clear, the AOJ by law must then issue a statement of the case (SOC); finally, to convey jurisdiction for the Board to hear the case, the Veteran must file a timely, substantive appeal. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). In a June 2012 rating decision the RO denied the Veteran's claim for an increased rating above 10 percent for degenerative joint disease in both knees, as well as his claim for service connection for diabetes. In an October 2012 decision the RO also denied the Veteran's claim for increased rating above 10 percent for seborrheic dermatitis and undiagnosed palmar skin rash. In December 2012 the Veteran filed three timely NODs indicating he disagreed with each of the referenced rating decisions. The Veteran's statements voiced clear disagreement with the rating decisions and a desire to contest the results with regards to each referenced issue. Because no special wording is required for a NOD, these three written statements are considered to each be a NOD. 38 C.F.R. §§ 20.201, 20.302(a). These NODs are still pending; and it is therefore proper to remand this claim because the Veteran has not yet been provided a SOC on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a statement of the case concerning each of the following issues: (a) entitlement a rating in excess of 10 percent for degenerative joint disease in both the Veteran's right and left knees; (b) entitlement to service connection for diabetes; and (c) entitlement to a rating in excess of 10 percent for seborrheic dermatitis and undiagnosed palmar skin rash. 2. The Veteran, and his representative, should be informed of the period of time within which a substantive appeal must be filed in order to perfect his appeal to the Board concerning these issues. If a timely substantive appeal is not filed, this claim should not be certified to the Board. If appealed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran has the right to submit additional evidence 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 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs