Citation Nr: 1318853 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-28 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial compensable rating for gastroesophageal reflux disorder (GERD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to July 2004. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for gastroesophageal reflux disease, rated 0 percent, effective December 15, 2006. The Veteran appealed for a higher initial rating. In March 2010, in October 2011, and in November 2012, the Board remanded this matter for additional development. FINDINGS OF FACT Since the December 15, 2006 effective date of the grant of service connection, the Veteran's service-connected GERD has been manifested by pyrosis (heartburn), nocturnal regurgitation, and occasional sleep disturbance with some complaints of nausea and vomiting. However, most symptoms are controlled when compliant with medication. There is no evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. CONCLUSION OF LAW With resolution of all reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent rating, but not higher, for GERD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.7, 4.114, DC 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a December 2006 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent April 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider the appropriateness of different ratings for distinct periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A June 2007 rating decision granted service connection and assigned an initial 0 percent rating for GERD, pursuant to 38 C.F.R. § 4.114 , Diagnostic Code 7346 (2012), effective December 15, 2006. As there is no Diagnostic Code for GERD, the RO has rated GERD analogous to hiatal hernia under Diagnostic Code 7346. The Board notes that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). Under Diagnostic Code 7346 for hiatal hernia, a 10 percent rating is assigned when the disease exhibits two or more of the symptoms for the 30 percent rating, of less severity. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned 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 rating schedule does not provide a 0 percent rating for hiatal hernia. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2012). A March 2007 VA examination notes that the Veteran was taking Aciphex for GERD. He missed two days of work in the last 12 months for flare-up of GERD. The Veteran has flare-ups of heartburn occurring three times a week on average with no identifiable precipitating factors and relieved by over-the-counter Prilosec and Tums. He had no complications of upper gastrointestinal bleeding or anemia and he denied hematemesis, melena, hematochezia, and weight loss. There was no impairment of his daily activities. In addition, the Veteran stated that he sometimes had nausea associated with the heartburn condition. The nausea resolved when the heartburn resolved with the medications. He did not have any vomiting and denied weight loss. The diagnosis was GERD, on medical therapy without complications. A September 2008 VA medical record notes that the Veteran complained of blood in the stool with constipation which improved when he stopped Etodalac. He had had no new episodes of bleeding. His heartburn was controlled with two Omeprazoles. A November 2011 VA examination report shows that the Veteran was prescribed Ranitidine of an unknown dose and frequency. He reported having problems with heart burn and regurgitation after returning from deployment and that these symptoms have persisted. The Veteran report daily nausea and vomiting caused by certain foods and heartburn several times a day. In addition, he had a history of regurgitation several times a day and a mild history of hematemesis or melena in February 2011. He did not have a history of dysphagia or esophageal distress. His overall general health was good and there were no signs of anemia. The diagnosis was GERD, with no significant effects on usual occupation, noted as a full time student, or usual daily activities. A March 2013 VA examination report shows that the Veteran was able to perform all activities of daily living. He was able to drive, and had no incapacitating episodes of medical conditions requiring physician ordered bed rest over the previous 12 months. The Veteran worked full time in design and had not missed any days of work in the past 12 months. He took Omeprazole daily for treatment of his GERD. The examiner noted that the Veteran's GERD was well controlled with Omeprazole and that the Veteran's heartburn symptoms had been significantly improved when he became more compliant with taking daily Omeprazole. The only other symptoms related to GERD were nocturnal regurgitation and chest pains which had also significantly improved with improved compliance with taking Omeprazole. Specifically, episodes of nocturnal regurgitation has decreased to once every two months and he rarely had chest pain. The Veteran indicated that he had sleep disturbance caused by esophageal reflux three times per year, with an average duration of less than one day. There had been no vomiting, weight loss, hematemesis, anemia, epigastric distress, dysphagia, or shoulder or arm pain at any time. In light of all the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability picture more nearly approximates the criteria for a higher 10 percent rating under Diagnostic Code 7346, but not higher. The evidence shows that the Veteran has two of the symptoms as required by the 10 percent rating, recurrent heartburn, and regurgitation, and when noncompliant with medication vomiting and nausea. However, the record as a whole does not show persistent symptoms that are productive of considerable impairment of health that equal or more nearly approximate the criteria for a 30 percent rating at any time since the effective date of service connection. While there may have been occasional fluctuations of the Veteran's GERD symptoms, the evidence shows no distinct periods of time when his symptoms have varied to such an extent that an initial rating in excess of 10 percent would be warranted for under any diagnostic code. Therefore, the criteria for the next higher rating for the Veteran's service-connected GERD have not been met any point since the effective date of the grant of service connection, such that there is no basis for staged rating in excess of 10 percent. Fenderson v. West, 12 Vet. App. 119 (1999). Furthermore, the Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disability rating for GERD inadequate. The Veteran's GERD was rated under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012), the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. The Veteran's GERD is manifested by heartburn, nocturnal regurgitation, some sleep disturbance, and when noncompliant with medication with nausea and vomiting. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disability rating for his GERD. A rating in excess of the currently assigned rating is provided for certain manifestations, but the medical evidence does not show that those manifestations are present. The criteria for rating the Veteran's GERD provides a reasonable description to rate the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular rating is adequate and no referral is required. In sum, the weight of the credible evidence demonstrates that since December 15, 2006, when service connection became effective, the Veteran's GERD has warranted a 10 percent rating, but not higher. The Board has resolved all reasonable doubt in favor of the Veteran in making this decision, but find that the preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating of 10 percent, but not higher, for GERD is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs