Citation Nr: 1314663 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 06-24 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) prior to May 13, 2005. 2. Entitlement to an initial rating in excess of 10 percent for GERD since May 13, 2005. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to December 2000, and from October 2001 to October 2004. This matter is on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The February 2005 rating decision granted service connection for GERD and assigned an initial noncompensable (0 percent) rating effective from October 26, 2004. During the processing of the appeal, a June 2006 rating decision granted an increased staged rating of 10 percent for GERD, effective from May 13, 2005. The Veteran's claims were remanded by the Board in July 2010. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. FINDING OF FACT At all times during the appellate period, GERD has been manifested by recurrent heartburn, with indications of regurgitation; medication is not entirely successful in controlling symptoms, but there is no considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for an increased, 10 percent initial rating for GERD prior to May 13, 2005, but no higher, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). 2. Since May 13, 2005, 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. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for GERD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has associated with the claims folder the Veteran's service treatment records, VA medical records, and private medical records. The Veteran has been afforded VA medical examinations, which include all required clinical findings for application of the rating schedule. The Veteran has not asserted, and the record does not indicate, that there are any additional pertinent records obtainable. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, and for the reasons stated below, the Board finds that the Veteran is entitled to a 10 percent evaluation, but no higher, for his service-connected GERD throughout the appellate period. Disabilities of the digestive system are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Codes 7200-7348. Section 4.114 provides that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's GERD is rated as noncompensably disabling prior to May 13, 2005, and as 10 percent disabling thereafter, under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7346. Based on the Veteran's predominant symptoms and disability, GERD, Diagnostic Code 7346 is the most appropriate Code, as well as the Code most beneficial to the Veteran. Diagnostic Code 7346 rates on the basis of symptoms, such as recurrent epigastric distress with dysphagia, pyrosis, and regurgitation or, in more severe situations, vomiting, hematemesis, melena, or material weight loss. 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent rating is warranted when there are for 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, Code 7346. A noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran has had service connection in effect for GERD since October 26, 2004, the day after his discharge from service. When examined for discharge in July 2004 the Veteran reported frequent heartburn. He was taking Aciphex to treat the heartburn. On VA examination in December 2004 the veteran reported that he was currently taking medication for control of his heartburn. While he did not refer specifically to GERD, and no diagnosis of GERD was indicated, the Veteran and examiner both discussed the role of the GERD medication in controlling a reported cough. A March 2005 VA treatment record notes that the Veteran was seen for his initial VA visit. He reported a three year history of GERD. The Veteran stated that Zantac did not help, that symptoms were worse in the morning, and that the symptoms were not related to food. Examination revealed a well appearing Veteran in no acute distress. The examiner prescribed Prilosec and recommended that the Veteran elevate the head of his bed by six inches. The Veteran was advised to return in three months. A May 2005 upper gastrointestinal (GI) examination revealed moderate to severe gastroesophageal reflux, small sliding hiatal hernia, small erosions and lineal ulcers in esophagus, compatible with reflux esophagitis. The GI examination revealed normal appearing stomach and duodenum. A January 2006 VA treatment record notes that the Veteran had a hiatal hernia and that he was there for a refill of his medication for treating his GERD. The treatment record does not reveal that the Veteran had any specific complaints. A July 2006 endoscopy performed at a private facility revealed Grade II erosive esophagitis and a medium sliding hiatal hernia. The Veteran's medication was changed from Prilosec to Nexium. On VA examination in October 2010 the Veteran reported that if he does not take his medication he will have symptoms of heartburn, acid taste, and nausea. The main symptom was noted to be heartburn aggravated by intake of spicy foods. There was no dysphagia for food, no hematemesis or melena, and no reflux or regurgitation. The Veteran reported episodic nausea without vomiting. The Veteran was in good health, he was well nourished, and there were no signs of anemia. The Veteran's symptomatology has been consistent throughout the appeals period. He has, when asked, consistently reported heartburn for which he used medication. At all times, the record indicates that the medication was not entirely effective in controlling the symptoms. Spicy foods could cause increases, for example, and in March 2005 the VA doctor changed medications and recommended elevating the bed for additional relief. Most importantly, however, the May 2005 upper GI study showed some erosions in the esophagus, indicating that acid had in fact been regurgitated or refluxed into that area for some period of time. It did not arise spontaneously. Resolving all doubt in favor of the Veteran, the Board finds that heartburn (pyrosis) and regurgitation have been present to some controlled degree at all times, warranting assignment of a 10 percent Schedular evaluation. Because care providers agree, and the Veteran does not contradict, that he generally is functioning well on medication, without true health impairment, a yet higher evaluation is not merited. The Veteran remains generally healthy and well nourished, with no acute distress. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The criteria fully contemplate the Veteran's reports of heartburn, and the clinically demonstrated reflux or regurgitation. There are no reports of symptoms not listed in the criteria. Further, the Schedule allows for higher evaluations for that currently assigned for additional or more severe symptoms. The Schedular criteria are adequate, and hence no further discussion of extraschedular evaluation is required. ORDER Entitlement to an initial 10 percent evaluation, but no higher, for GERD prior to May 13, 2005, is granted. Entitlement to a rating in excess of 10 percent for GERD from May 13, 2005, is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs