Citation Nr: 1319703	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  08-33 973A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflux disease (GERD).


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from October 1974 to September 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision that, in part, granted service connection for GERD and assigned an initial rating of 10 percent, effective October 1, 2007.

During the course of the appeal, an October 2008 rating decision increased the initial rating to 30 percent, also effective October 1, 2007.  Since the Veteran indicated that he was seeking a rating in excess of 30 percent, the matter remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  The Board remanded the matter in April 2012 and November 2012 for additional development.

A review of the Virtual VA paperless claims processing system was conducted.


FINDINGS OF FACT

The Veteran's GERD is manifested by persistently recurrent epigastric distress with heartburn, dysphagia, regurgitation, dry cough, substernal pain that extends to the arm and shoulder, and sleep disturbance, productive of no more than considerable impairment of health.  


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for GERD are not met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.114, Diagnostic Code 7346 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 
The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

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); 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 Veteran 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1).

In May 2008, the RO provided VCAA notice with respect to the Veteran's claim for GERD. The RO granted service connection for GERD in a March 2008 rating decision.

In cases like this one, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been substantiated, thereby rendering section 5103(a) notice no longer necessary because the purpose the notice is intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 491 (2006).

The current appeal is a result of a notice of disagreement with the initial rating assigned, and thus gives rise to no further duty to notify under VCAA. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement).

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA and private medical records, multiple lay statements, and multiple VA examination reports. 

As noted, the Veteran's claim was remanded by the Board for additional development in April 2012 and November 2012. Specifically, in the April 2012 remand the Board requested that the RO/AMC obtain the Veteran's VA and private treatment records and afford him a new examination to include an interpretation of previous treatment records and an opinion with regard to the current severity of the Veteran's GERD. The November 2012 remand again requested that an opinion be provided regarding the current severity of the Veteran's GERD.

The record reflects that the Veteran's VA and private treatment records were obtained and associated with his claims file. The VA examination to include an opinion with regard to severity was also obtained. Thus, 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); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required).

As the Board will discuss in its analysis, the Veteran was provided with a VA examination in June 2012, to include an addendum opinion in January 2013. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination with the addendum is adequate for rating purposes. See 38 C.F.R. § 4.2 (2012).

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 his claim. He has declined to exercise his option of a personal hearing with a Veterans Law Judge.

All relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.

The Merits of the Claim

The Veteran was initially granted service connection and assigned a 10 percent disability rating for GERD in a March 2008 rating decision. The rating was effective October 1, 2007. The Veteran disagreed with this rating, alleging that his symptoms warranted a higher rating. The RO issued a decision in October 2008,granting a 30 percent rating effective October 1, 2007. 


The Veteran contends that an increased compensable evaluation for his service-connected GERD is warranted due to such symptoms as GI distress, specifically, regurgitation, burning sensation in his chest, and sharp pains behind his sternum. See letter from Veteran, dated May 2012. The preponderance of the evidence is against a finding of entitlement greater than 30 percent, and the appeal will be denied. 

The percentage ratings contained in the 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). Separate diagnostic codes identify the various disabilities.

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 (2012).

In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet.App. 282 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). In cases such as this in which the Veteran has appealed the initial rating given at the time service connection is established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating, referred to as "staged" ratings, from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet.App. 119, 126-7 (1999).


The Veteran's GERD is currently evaluated at the 30 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7346. A minimum 10 percent evaluation is assigned for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation contemplates 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 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. Id.

38 C.F.R. § 4.114 sets forth that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the Diagnostic Code which represents the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

The Veteran was afforded a VA examination at the time of his retirement in July 2007 which noted that the Veteran had GERD that was diagnosed by an upper GI. The condition did not affect general body health or body weight. His hiatal hernia condition produced symptoms of heartburn, scapular pain, reflux, and regurgitation. He did not exhibit symptoms of dysphagia, epigastric pain, arm pain, hematemesis, passing of black-tarry stools, nausea, or vomiting. The Veteran stated that the symptoms occurred intermittently, as often as twice a month, with each episode lasting 24 hours. The Veteran reported 11 attacks in the prior year. The Veteran was treating it with Aciphex at that time. He reported no hospitalization or surgery for his GERD condition. Functional impairment was noted as sleep disturbance and inability to bend over during flares.

Treatment records from the Naval Medical Center (NMC) noted that the Veteran did not exhibit nausea, vomiting, or abdominal pain.  NMC treatment records indicated that the Veteran repeatedly reported chest discomfort and a dry cough. 

The Veteran was afforded a VA examination for intestinal conditions in June 2012, but it was determined that examination would not adequately address the Veteran's symptoms. The Veteran was then afforded a VA examination for esophageal conditions in June 2012. The Veteran was diagnosed with GERD and hiatal hernia. The Veteran reported that he started having severe heartburn after meals that was made worse by being in a reclined position. It was determined he had substantial frequent reflux. The Veteran reported his symptoms as heartburn, dry throat, dry cough, regurgitation, acid taste, behind breast bone pain that radiated to neck and shoulder, dysphagia, and sleep disturbance. The examiner noted that the Veteran had sleep disturbance that occurred four or more times a year with a duration of episodes of symptoms lasting ten days or more He did not report any weight loss, nausea, vomiting, blood in stool, or melena. It was noted that the Veteran treated his symptoms with famotidine (Pepcid) and Nexium. A CBC was performed with no significant findings. 

The January 2013 addendum noted that the Veteran's GERD symptoms were subjective and although he was prescribed a high dosage of Nexium and Pepcid there was no objective evidence of weight loss, no GI bleeding, no recent hospital admission or endoscopy and the Veteran was noted to be working full time as vice president of a ship yard.  A June 2012 lab report noted a normal blood count with good nutritional status, and no electrolyte problem or vomiting.  The examiner opined that the Veteran's GERD was less likely as not productive of severe impairment of health.  

With recurrent epigastric distress including heartburn, dry throat, dry cough, regurgitation, substernal pain that radiates to neck and shoulder, dysphagia, and sleep disturbance, but no evidence of abdominal pain, vomiting, weight loss, hematemesis or melena with moderate anemia, the evidence preponderates against a showing of the requisite criteria for a 60 percent evaluation for GERD, and that higher rating is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7346. The evidence does not support the contention that the Veteran's GERD produces severe impairment of health. Id. 

With regard to this disability, there is no basis for a "staged" rating pursuant to Fenderson.  Rather, the symptomatology shown upon examination during the pendency of the appeal has been essentially consistent and fully contemplated by the assigned 30 percent disability rating.

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);(2) the layperson is reporting a contemporaneous medical diagnosis, or;(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

The Veteran is competent to report his gastrointestinal symptoms, which have included heartburn, dry cough, reflux, substernal pain, and sleep disturbance. His complaints are credible. The Veteran's complaints have been considered; however, the evidence does not show the severity required for a higher schedular rating based on the applicable symptomatology under the applicable rating codes discussed above.

Extraschedular Considerations

Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration.

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). 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 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, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation 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 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 centers on his complaints of heartburn, regurgitation, substernal pain, dysphagia, and sleep disturbance. These symptoms are specifically contemplated under the assigned ratings 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.

The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


ORDER

Entitlement to an initial rating in excess of 30 percent for GERD is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs