Citation Nr: 1317033 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 07-12 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial increased rating in excess of 10 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously before the Board in September 2010 and November 2012 and was remanded for additional development. The Veteran appeared before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in February 2011. The record contains a transcript of that hearing. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. At all times during the appeal period, the Veteran's GERD symptoms most closely reflect persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health; she does not have symptoms of pain, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health. 2. The evidence of record does not show that the Veteran's service-connected GERD is so exceptional or unusual that referral for extraschedular consideration by a designated authority is required. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 30 percent, but no higher, for service connected GERD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). 2. Application of the extraschedular rating provisions is not warranted for the Veteran's service-connected GERD. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an initial increased disability rating for her service-connected GERD. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed, and a decision will be rendered. Stegall concerns As alluded to above, in September 2010 and November 2012, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to provide the Veteran with a Travel Board hearing as well as afford the Veteran a VA examination for her GERD and associate a report of the examination with her claims folder. The Veteran's claim was to then be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided a Travel Board hearing in February 2011. Additionally, she was afforded a VA examination for her GERD in February 2013 and a report of the examination was associated with her claims folder. The Veteran's GERD claim was readjudicated via a March 2013 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his representative, if any, 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 that is necessary to substantiate the claim, that VA will seek to provide, and that he/she is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Further, the United States Court of Appeals for Veterans Claims (Court) has 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Court has also held, however, that VCAA notice is not required under circumstances where a claim for service connection is granted, a rating and an effective date are assigned, and the claimant files an appeal as to the evaluation assigned to that grant. See Dingess v. Nicholson, 19 Vet. App. at 491 (in which the Court held that, "[i]n 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"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the Veteran's claim for an increased rating for her service-connected GERD essentially fall within this fact pattern. In the appealed rating action, dated in May 2006, the RO granted service connection for GERD and awarded a 10 percent evaluation for this disability, effective from October 2004. After receiving notice of the award of service connection for this disability here at issue, the Veteran perfected a timely appeal with respect to the rating initially assigned to the grant. Clearly, no further section 5103(a) notice is required for this increased rating claim. As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the Veteran has been provided with various communications [including the notice of the May 2006 rating decision, the February 2007 statement of the case (SOC), and the February 2010 and March 2013 SSOCs] that contain notice of VA's rating criteria, her appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development of notification of this increased rating claim is required. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate her claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran and other individuals, service treatment records, as well as VA and private treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which she presented oral argument in support of her increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO 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 specifically discussed the Veteran's GERD symptomatology, and suggested the submission of evidence that would be beneficial to the Veteran's claim, namely evidence of pyrosis, regurgitation, and shoulder pain. Significantly, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the rating criteria necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the criteria necessary to substantiate her 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). The Veteran was afforded VA examinations in June 2005, October 2007, and February 2013. The examination reports reflect that the examiners interviewed the Veteran, considered her past medical history, documented her current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also 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]. The Board notes that although the Veteran's claims folder was available and reviewed during the February 2013 VA examination, it is unclear whether it was available and reviewed during the June 2005 and October 2007 VA examinations. However, such did not have an adverse effect on the adequacy of the examinations. Notably, as previously indicated, the examiners fully considered the Veteran's complaints, to include her complaints of symptomatology associated with her GERD. Examinations were then performed that addressed all the relevant rating criteria. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of her claim. She has retained the services of a representative. She was afforded a personal hearing in February 2011. Accordingly, the Board will proceed to a decision. Analysis The Veteran essentially contends that her GERD is more disabling than contemplated by the current 10 percent evaluation. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can 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 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"). The Veteran's disability has been rated under Diagnostic Code 7346 [hiatal hernia]. Her GERD diagnosis is not listed in the Rating Schedule. The RO determined that the most closely analogous diagnostic code is 38 C.F.R. 4.114, Diagnostic Code 7346 for hiatal hernia. Notably, the medical evidence documents a diagnosis of hiatal hernia. Based on this diagnosis as well as the medical evidence discussed below, the Board finds that the Veteran has been appropriately rated under Diagnostic Code 7346. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case"). The Veteran has not suggested that other diagnostic codes be applied. Under Diagnostic Code 7346, a 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation is warranted 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, Diagnostic Code 7346 (2012). The Veteran was afforded a VA examination in June 2005. She complained of mild difficulty with swallowing solids which occurred once a month as well as mild reflux once a month. She denied pyrosis, epigastric distress, hematemesis, melena, nausea, and vomiting. She used medication for treatment and also maintained a bland diet and ate an early dinner. She also slept with the head of the bed elevated. Upon examination, the VA examiner reported that her general health was good and diagnosed her with hiatal hernia with esophageal reflux. The Veteran was provided a subsequent VA examination in October 2007. She complained of severe heartburn, and again stated that she must sleep with her head elevated to prevent regurgitation. She did not complain of weight problems. From the hiatal hernia condition, the Veteran reported dysphagia, heartburn, epigastric pain, arm pain, reflux and regurgitation of stomach contents and pain in shoulder blade, and voice irritation due to reflux. She did not complain of weight problems, scapular pain, hematemesis, passing of black-tarry stools, nausea, or vomiting. She reported that her symptoms occurred twice a month which lasted an hour in duration, and her voice was constantly irritated. The VA examiner continued the diagnosis of GERD. The Veteran was provided an additional VA examination in February 2013. She complained of regurgitation that occurs five to ten times per month and heartburn that occurs three to four times per month which lasts one to two hours. She also reported that she was prescribed an elevated bed that helped with her symptoms and that she has occasional diarrhea for which she takes probiotics. Furthermore, she noted that she has pernicious anemia and now takes B12 shots monthly as well as hoarseness and right shoulder pain related to her GERD. She used medication for treatment. Upon physical examination, the VA examiner reported that the Veteran's esophageal condition includes symptomatology such as persistently recurrent epigastric distress, pyrosis, and regurgitation. Furthermore, the examiner declined to diagnose the Veteran with pernicious anemia. Moreover, he opined that the Veteran's right shoulder pain is more likely caused by her degenerative disc disease of the cervical spine as the C4-C5 level supplies sensory and motor innervations to the shoulder. He indicated that no pathology was found for her subjective complaint of hoarseness. He also reported that the Veteran's heartburn, regurgitation, and her resolved B12 deficiency which requires monthly injections are related to her GERD. The Veteran testified as to her GERD and hiatal hernia symptomatology at the February 2011 Board hearing. She reported that prior to taking medication, she had difficulty swallowing food. She also continued her report of heartburn, regurgitation and sleeping with her head elevated. Additionally, she complained of pernicious anemia and required B12 shots as well as shoulder pain and hoarseness. The Board also notes that the Veteran complained of severe heartburn, regurgitation, dysphagia, epigastric pain, arm pain, reflux, and voice irritation at a hearing before a decision review officer (DRO) in November 2009. Based on the evidence, the Board concludes that a 30 percent rating is warranted for the Veteran's GERD as the overall disability picture most closely reflects the criteria for a 30 percent evaluation. The June 2005, October 2007, and February 2013 VA examination reports show continued epigastric distress with difficulty swallowing as well as severe and frequent heartburn and regurgitation which required a prescribed bed to keep her head elevated. Although it is unclear if her report of pain is truly "substernal pain" or represents physical blockage, the impact is the same. Further, medication is continually required. The Veteran also indicated at her hearings discussed above that she had difficulty swallowing as well as frequent heartburn and regurgitation. The Board finds that her GERD symptomatology therefore arguably rises to the level of considerable impairment of health. As such, the competent and probative evidence of record nearly approximates the criteria for a 30 percent rating under Diagnostic Code 7346. All reasonable doubt is therefore resolved in favor of the Veteran. The Board further finds that a disability rating greater than 30 percent is not warranted, as the evidence does not show or nearly approximate symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Furthermore, no health care provider has indicated that the Veteran's symptoms are productive of severe impairment of health. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the medical evidence of record appears to support the proposition that the Veteran's service-connected GERD has not changed appreciably during the period on appeal. There are no medical findings and no other evidence which would allow for the assignment of disability rating other than 30 percent during the period of time here under consideration. Specifically, as discussed above, the competent medical evidence of record, to include the June 2005, October 2007, and February 2013 VA examination reports indicate that the Veteran's GERD symptomatology has remained relatively consistent throughout the period. As such, there is no basis for awarding the Veteran a disability rating other than the assigned 30 percent for any time from July 28, 2004 to the present. In evaluating the severity of her service-connected disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA 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 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment due to GERD and associated symptomatology, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. In awarding the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the evidence of record does not show, and the Veteran has not asserted, that her GERD prevents her from obtaining substantial and gainful employment. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to an initial 30 percent disability rating for GERD is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs