Citation Nr: 1323286 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 06-22 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) with peptic ulcers. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran had active service from January 1982 to March 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for GERD, the Board characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In September 2010, the Board remanded the service connection claims for GERD and a chronic sinus/nasal disorder (claimed as sinusitis) to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The RO subsequently granted the Veteran's claim of service connection for allergic rhinitis in a February 2012 rating decision. There is no subsequent correspondence from the Veteran expressing disagreement with the rating or effective date assigned. Accordingly an issue relating to allergic rhinitis is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). A review of the claims file also shows that there has been substantial compliance with the Board's September 2010 remand directives with respect to the currently appealed claim. The Board directed the RO/AMC to contact the Veteran and request additional relevant treatment records. A letter was sent to the Veteran in September 2010. The Board also directed the RO/AMC to schedule the Veteran for an updated VA examination. This examination occurred in March 2012. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). A claim for a total rating based on individual unemployability (TDIU) due to service connected disability is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To the extent that private treatment records in December 2009 indicate GERD symptoms interfere with employment, the issue of entitlement to a TDIU was bifurcated and separately adjudicated by the RO in an unappealed rating decision in June 2006. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). Consequently, further consideration by the Board of entitlement to a TDIU under Rice is not warranted. FINDING OF FACT The record evidence shows that the Veteran's service-connected GERD with peptic ulcer is manifested by recurrent epigastric distress, pyrosis, and regurgitation, at times, which require constant medication to control. CONCLUSION OF LAW The criteria for an initial 10 percent rating, and no higher, for GERD with peptic ulcer have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code (DC) 7399-7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. He did not identify any additional treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not show, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in April 2005, October 2010 and March 2012. The Veteran has not argued, and the record does not show, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The rationales for the opinions provided are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence relevant to the currently appealed claim, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). Law and Regulations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's GERD with peptic ulcer is rated under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. GERD is not listed specifically in the Rating Schedule, and the hyphenated diagnostic code including the "99" series indicates that the most analogous diagnostic code for the Veteran's GERD is DC 7346 (hiatal hernia). 38 C.F.R. § 4.20 (providing for rating by analogy). 38 C.F.R. § 4.114 provides that ratings under DC's 7301 through 7329, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. The evidence discussed below establishes that DC 7346 reflects the dominant disability picture. Under DC 7346, a 10 percent rating is warranted where there are two or more of the symptoms listed in the criteria for the 30 percent rating of less severity. A 30 percent rating is warranted where there is 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 where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, DC 7346 (2012). Factual Background The April 2005 VA examination report reflects the Veteran's extensive history of treatment for peptic ulcers and GERD during service, to include esophagitis and antritis, identified on gastroesophagoduoenoscopy in 2004, as well as a Nissan procedure for reflux in 2000. Current symptoms were noted to include a daily epigastric burning sensation, often times present before meals or in between meals. In addition to a daily dose of Nexium required for control of symptoms, heartburn medication every three months was noted. Consistent with the findings reported in April 2005 are the findings reported in December 2009 private treatment records, to include a requirement for chronic Nexium therapy for control of GERD symptoms. Twice monthly episodes of generalized abdominal pain with up to 5 bowel movements per day were noted. In addition to the symptoms of a daily epigastric burning sensation every morning and throughout the day noted on VA examination in October 2010, incidents of regurgitation were noted every few months. Nexium twice a day for of control of GERD symptoms, along with heartburn medication every three to four months, were reported. Analysis The Board finds the preponderance of the evidence supports assigning an initial 10 percent rating, and no higher, for the Veteran's service-connected GERD with peptic ulcers. The record evidence shows that the Veteran suffers from GERD, with recurrent epigastric distress, pyrosis (heartburn), and regurgitation, at times. Although the evidence reflects his symptoms are controlled with daily Nexium, the effects of medication are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Under these circumstances, with his history of gastritis, pyrosis, and reflux, requiring constant medication to control, the Board finds the symptoms more closely approximate to the criteria for an evaluation of 10 percent, but no higher. See 38 C.F.R. § 4.7. In the absence of evidence of considerable impairment of health due to GERD with peptic ulcer, a higher 30 percent rating is not warranted under Diagnostic Code 7346. Also, a 60 percent rating is not warranted as there has been no vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. The April 2005 VA examination report notes that the Veteran's appetite was good and his weight stable at 255 pounds. The December 2009 private records reflect GERD without Barrett's esophagitis or esophageal stricture, and he denied dysphagia, weight loss, and black or bloody stools. Although abdominal pain was noted to be due to possible colitis, colonoscopy was normal. In October 2010, symptoms were noted to be stable since 2005, with weight reported to be 295 pounds and stable. Both the October 2010 and March 2012 examination reports note no hematemesis or melena and no vomiting. No weight loss or dysphagia was reported in the March 2012 report, and although a history of shoulder pain was noted, the Veteran denied current shoulder pain. The examiner reported that there was no recent clinical evidence of peptic ulcer or gastritis. The Board also finds that the record evidence does not show moderate recurring episodes of severe symptoms two to three times a year averaging 10 days in duration, and gastritis has been asymptomatic throughout the appeal period. Thus, a rating higher than the 10 percent assigned in this decision is not warranted under DC's 7305 and 7307. The Board finally notes that, to the extent that the December 2009 records indicate interference with employment, the October 2010 VA examination report reflects no time lost from work due to GERD symptoms. The initial 10 percent rating assigned in this decision also contemplates impairment in earning capacity, including loss of time from exacerbations of GERD. 38 C.F.R. § 4.1. Extraschedular An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The symptoms of the Veteran's service-connected GERD with peptic ulcers are contemplated by the applicable rating criteria. The Board compared the Veteran's symptoms to the relevant criteria and there were few, if any, of his symptoms not listed in those criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. The October 2010 VA examination report reflects the Veteran's report that he did not miss any work due to service-connected GERD symptoms. Consequently, the Board concludes that the Veteran's GERD with peptic ulcer has not caused marked interference with employment. In addition, the record evidence reflects that he has not been hospitalized frequently for treatment of his service-connected GERD with peptic ulcers. The Veteran's symptoms otherwise have not rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial 10 percent rating for GERD with peptic ulcers is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs