Citation Nr: 1320669	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  09-17 141	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial increased rating for gastroesophageal reflux disease (GERD), currently evaluated as 10 percent disabling.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1983 to August 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2008 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida denied service connection for eczema, the bilateral elbow condition, a right knee condition and bilateral hearing loss, and granted service connection for GERD, evaluating it as 10 percent disabling, effective from September 1, 2007.  

In April 2011, the Veteran testified at a hearing conducted at the St. Petersburg RO before the undersigned Veterans Law Judge (VLJ).  A copy of the transcript has been associated with the claim folder.  

In the October 2012 decision, the Board granted service connection for bilateral hearing loss and tinnitus, and remanded the remaining issues on appeal for additional evidentiary development.  Specifically, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain the Veteran's outstanding VA treatment records, and to schedule the Veteran for a VA examinations to determine the nature and etiology of the disorders he was seeking service connection for, and to determine the extent and severity of his service-connected GERD.  In February 2013, the Veteran underwent the requested VA examinations, and copies of the examination reports as well as the updated VA outpatient treatment records have since been associated with his claims file and/or scanned into the Virtual VA claims process system.  The Appeals Management Center (AMC) subsequently readjudicated the claim in the March 2013 Supplemental Statement of the case (SSOC).  Thus, the AOJ has complied with all of the Board's remand instructions.  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).  

Before the matter was transferred to the Board, by way of the March 2013 rating action, the RO granted service connection for the right and left elbow epicondylitis and cubital tunnel syndrome, evaluating both disorders as 10 percent disabling, effective September 1, 2007; and further granted service connection for right knee chondromalacia patella and eczema, evaluating both disorders as noncompensably disabling, effective September 1, 2007.  The Board finds that these grants of service connection constitute a full award of the benefits sought on appeal with respect to these issues.  See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997).  The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for these disabilities; thus, these matters are not in appellate status.  The Veteran is currently only seeking an initial rating in excess of 10 percent for his service-connected GERD.  


FINDINGS OF FACT

The Veteran's GERD has not been manifested by persistently recurring symptoms productive of considerable or severe impairment of health.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for GERD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.113, 4.114, Diagnostic Code 7346 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal.  See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)  

The Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. 

Through a September 2007 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying service connection claim.  Thereafter, the Veteran was afforded the opportunity to respond.  In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the September 2007 letter.  Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim that is the subject of this decision, and has been afforded ample opportunity to submit such information and evidence.

The Board also finds that the September 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  Thus, the Board finds that "the appellant [was] provided the content-complying notice to which he [was] entitled."  Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004).  In addition, the Veteran was given the opportunity to respond following the September 2007 notice letter.  

In any event, as is the case here, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case.  See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2012); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).  Nothing about the evidence or any response to the RO's notification suggests that the rating issue must be re-adjudicated ab initio to satisfy the requirements of the VCAA.  

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein.  The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's rating claim.  In addition, medical records issued from the Naval Branch Health Clinic (NBHC) Naval Air Station (NAS) Whiting Field treatment facility (hereinafter referred to as Milton Whiting Field clinic), and dated from March 2005 to September 2009, have since been obtained and associated with the claims file.  Indeed, at no time has the Veteran referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim.  

Also, in January 2008 and February 2013, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record.  The examination reports contain sufficient evidence by which to evaluate the Veteran's claim in the context of the rating criteria.  In particular, the examiner elicited information from the Veteran concerning his GERD symptoms.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination in connection to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. §§ 5103(a), 5103A and 38 C.F.R. § 3.159.

II.  Analysis

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in 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 of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After 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 reviewed when making disability evaluations.  See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  Further, "[w]here 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).

As noted above, the AOJ granted service connection for GERD and evaluated it as 10 percent disabling, effective from September 1, 2007.  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 location and symptomatology are closely analogous.  38 C.F.R. § 4.20.  In this regard, the AOJ has rated the Veteran's service-connected GERD under Diagnostic Code 7346, analogous to hiatal hernia.  38 C.F.R. § 4.114, Diagnostic Code 7346.  The Veteran appealed the initial rating assigned, and currently contends that his service-connected GERD is more disabling than contemplated by the assigned 10 percent rating.  For the reasons that follow, the Board concludes that a rating in excess of 10 percent rating is not warranted.  

Under Diagnostic Code 7346, a 10 percent rating is warranted when there are 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 and productive of considerable impairment of health.  A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health.  

Dysphagia is defined as difficulty in swallowing.  Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007).  Pyrosis is defined as heartburn.  Id. at 1587.  Hematemesis is defined as the vomiting of blood.  Dorland's Illustrated Medical Dictionary, 842 (31st ed. 2007).  Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood.  Id. at 1142.  

The Board notes that the Veteran's service treatment records reflect ongoing complaints of, and treatment for, heartburn, indigestion, and abdominal discomfort.  These records also reflect a diagnosis of GERD as early as March 2000.  During an April 2007 treatment visit at the Milton Whiting Field clinic, the Veteran reported experiencing symptoms of gastric reflux, and described these symptoms as "uncontrolled" on Zantac and Tums, and worse after meals.  However, he denied symptoms of nausea, vomiting, melena, hematemesis, abdominal pain and chest pain.  He was thereafter placed on new medication (Aciphex/Rabeprazole), and during the May 2007 treatment visit, reported that his reflux was now under control.  

At the January 2008 VA examination, the Veteran provided his medical history and reported that he was diagnosed with GERD in March 2000 after being admitted to the Emergency room with complaints of chest pain and shortness of breath.  The examiner acknowledged the Veteran's reported symptoms of "pyrosis, epigastric and substernal, with acid," and "dysphagia with hot liquids."  The Veteran denied any symptoms of nausea, vomiting, melena or hematemesis, and noted that he was currently taking Aciphex, Rolaids and what appears to be Tums, on an as-needed basis.  According to the Veteran, he had dietary changes associated with constipation and no esophageal complications.  The Veteran also underwent an upper gastrointestinal (UGI) series, the results of which showed a small sliding hiatal hernia and small spontaneous gastroesophageal (GE) reflux in the supine position.  Based on the evaluation, the VA examiner diagnosed the Veteran with GERD and hiatal hernia.  

While the Veteran presented at the Milton Whiting Field treatment facility in February 2009 with complaints of a recent change in the frequency of his bowel movements, the remaining records from this treatment facility are clear for any documentation of symptoms associated with his GERD.  However, these records do indicate that the Veteran received continual prescription refills for various medications, to include Aciphex and Prilosec, for treatment of his gastrointestinal symptoms.  

At the April 2011 hearing, the Veteran described the problems he was experiencing as a result of his GERD.  According to the Veteran, if he eats anything within an hour of going to bed, it usually "come[s] back up" and gets stuck in his throat and mouth with associated chest tightness and pain.  See April 2011 Hearing Transcript (T.), p. 4.  The Veteran also reported to have difficulty swallowing, problems with regurgitation, symptoms of heartburn, and associated pain in the right shoulder that coincides with his gastric problems.  See T., pp. 4-7  

Pursuant to the October 2012 remand, the Veteran was afforded another VA examination in February 2013, at which time he reported to take 20 milligrams (mg) of Prilosec twice a day since 2005.  According to the Veteran, he is asymptomatic as long as he continues to take his medication.  The Veteran did report to experience occasional flare-ups of his GERD twice a month, the associated symptoms of which consist of reflux, heartburn, burping, gas, and "a squeezing restrosternal tightness" which radiates into his back and arms.  According to the Veteran, eating spicy acidic food and stress from work/home serves to trigger his flare-ups, and the symptoms gradually resolve within 30 minutes after taking Tums and Rolaids.  The examiner acknowledged the Veteran's symptoms of pyrosis, reflux, regurgitation, and substernal arm or shoulder pain, and noted that the Veteran denied experiencing any signs of esophageal stricture, spasm of esophagus or an acquired diverticulum of the esophagus.  In addition, the examiner reviewed the March 2000 esophagogastoduodenoscopy (EGD) results, the findings of which showed hemorrhagic duodenitis and were otherwise normal.  The Veteran also underwent an upper GI series at the February 2013 VA examination, the results of which revealed findings of GERD and were otherwise normal.  Based on her evaluation of the Veteran, the VA examiner determined that the Veteran's GERD was controlled on medication, and added that the Veteran did not have any functional limitations as a result of this disability.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial evaluation greater than 10 percent for his service-connected GERD.  Although the Veteran has reported a history of pyrosis, reflux, regurgitation and substernal arm or shoulder pain, as well as intermittent symptoms of dysphagia throughout the appeal, the evidence documents that the Veteran's medication, identified as Aciphex/Rabeprazole and Prilosec/Omeprazole, control his GERD symptoms.  Indeed, treatment records from the Milton Whiting Field clinic indicate that the Veteran's symptoms were brought under control after he started taking Aciphex.  See May 2007 treatment report.  Furthermore, the Veteran himself stated that he is asymptomatic as long as he takes Prilosec on a daily basis.  See February 2013 VA examination report.  

The Board acknowledges the Veteran's complaints of heartburn, dysphagia, regurgitation and substernal pain, as described at his VA examinations and during his hearing.  Whether the Veteran experiences epigastric distress during these periods is unclear.  The medical evidence does not appear to address the symptom; nor has the Veteran necessarily reported experiencing epigastric distress.  

Based on the evidence of record as it currently stands, the Veteran's symptoms, at best, are intermittent, and appear to manifest either when he is off his medication or as a result of work or home-related stress and/or due to spicy foods.  Despite the occasional flare-ups, the Veteran himself stated that these symptoms subside and completely resolve within 30 minutes once he takes over-the-counter Tums or Rolaids.  As such, the Veteran appears to have his symptoms under control even during occasional flare-ups.  Moreover, the Board finds persuasive that the evidence does not reflect that the Veteran sought treatment for his GERD during those periods when he was either off his medication or experiencing a flare-up.  Other than the VA examination reports, and few treatment reports from NBHC Milton Whiting Field clinic dated in early 2007, the medical evidence of record predominantly focuses on the Veteran's other ailments.  Furthermore, as previously noted above, the February 2013 VA examiner determined that the Veteran's GERD was controlled with medication, and that the Veteran did not experience any functional limitations as a result of his GERD.  Thus, the Board does not find evidence of persistently recurrent epigastric distress.  

As such, lacking any other evidentiary basis in the record, the Board does not find that the Veteran's GERD has resulted in considerable or severe impairment of health.  The Board concludes therefore that the evidence of record does not support the criteria required for the next higher rating of 30 percent for this service-connected disability under DC 7346.  

Furthermore, the Board has considered whether a higher disability rating would be warranted under any other diagnostic code.  In this regard, the Board has taken into consideration the March 2000 diagnostic studies, the results of which revealed hemorrhagic duodenitis.  The Board has also taken into consideration treatment records from the Milton Whiting Field clinic reflecting an ongoing diagnosis of chronic reflux esophagitis.  The Board has considered Diagnostic Codes 7203-05 which involve disabilities of the esophagus.  However, the evidence of record does not demonstrate, nor has the Veteran alleged, esophageal stricture (obstruction) or spasm.  Indeed, the February 2013 VA examiner noted that the Veteran did not have esophageal stricture, spasm of the esophagus, or diverticulum of the esophagus.  Also, none of the criteria and/or symptomatology under Diagnostic Codes 7203-05 are similar to the symptomatology associated with GERD.  See 38 C.F.R. § 4.114, Diagnostic Codes 7203, 7204, 7205 (2012).  

In addition, Diagnostic Codes 7304-7307 are not for application as the Veteran does not have any type of ulcer (gastric, duodenal or marginal) or hypertrophic gastritis.  Furthermore, the Veteran has not been shown to have adhesions of the peritoneum, postgastrectomy syndrome, stenosis of the stomach, residuals of a stomach injury, residuals of an injury of the liver, cirrhosis of the liver, chronic cholecystitis or an inguinal hernia.  Therefore Diagnostic Codes 7301, 7308 -7314 and 7338 are inapplicable.  Additionally, Diagnostic Code 7323 is not applicable as the Veteran has not been diagnosed with ulcerative colitis.  Moreover, the Veteran has not undergone a resection of his large or small intestine, and has no history of a fistula.  Therefore, Diagnostic Codes 7328, 7329 and 7330 are not applicable.  Furthermore, impairment of sphincter control of the rectum and anus, stricture of the rectum and anus, as well as a prolapsed rectum has not been shown, and there are no signs of internal or external hemorrhoids.  Therefore Diagnostic Codes 7332, 7333, 7334 and 7336 are not applicable.  38 C.F.R. §4.114.  

Additionally, as the record contains no evidence showing that the Veteran is entitled to a higher rating for his service-connected GERD at any point during the instant appeal, no staged ratings are appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus, the Board finds that the current 10 percent evaluation is appropriate for the entirety of the rating period.  38 C.F.R. § 4.114, Diagnostic Codes 7305, 7346 (2012).  

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulations, 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  

In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating.  

With regard to the Veteran's service-connected impairment, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented; nor are there any other factors that take this disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned 10 percent disability rating for GERD contemplate his symptoms, and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  As such, the threshold issue under Thun is not met and any further consideration of referral to the appropriate VA officials for extraschedular consideration is not necessary.


ORDER

Entitlement to an initial rating in excess of 10 percent for GERD is denied.  




____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs