Citation Nr: 1323476 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 07-07 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) prior to May 16, 2013, and for an initial rating in excess of 10 percent from May 16, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who had several periods of either active duty (special work) or active duty for training, including from October 1972 to February 1973, from February 1991 to October 1991, from April 1994 to September 1996, and from September 1997 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO granted service connection for GERD and assigned an initial noncompensable evaluation. The Veteran failed to report for a scheduled Board hearing in December 2007 and his request for a hearing is considered withdrawn. 38 C.F.R. § 20.702(d) (2012). The Board remanded the case for additional development in November 2010 and February 2013. In a May 2013 rating decision the RO granted an increased 10 percent rating for GERD effective from May 16, 2013. Therefore, the issue for appellate review has been revised. FINDINGS OF FACT 1. The Veteran's GERD prior to May 16, 2013, was manifested by intermittent symptoms of pyrosis and/or right-sided abdominal pain that were generally controlled by diet and medication and were not productive of a considerable impairment of health. 2. The Veteran's GERD since May 16, 2013, is manifested by pyrosis and regurgitation that are generally controlled by diet and medication and are not productive of a considerable impairment of health. CONCLUSION OF LAW The criteria for an initial compensable rating for GERD are met, but the criteria for an initial rating in excess of 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his original claim for service connection by correspondence dated in March 2005. The veteran is challenging an initial staged evaluation assigned following the grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in 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. Id. at 490-91. Thus, because the notice that was provided before these claims for service connection were granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has also met its duty to assist the Veteran. Authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, and the Veteran's statements in support of his claim. The development requested on remand in November 2010 and February 2013 has been substantially completed in compliance with those remands. Stegall v. West, 11 Vet. App. 268 (1998) (claimant entitled to compliance with remand directives). There is no evidence of any additional existing pertinent records. In correspondence dated in June 2013 the Veteran's representative reported they had no additional evidence to provide. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The United States Court of Appeals for Veterans Claims (hereinafter "the Court" has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). Criteria governing evaluation of GERD VA regulations provide a 60 percent rating for the analogous disability of hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health; a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 10 percent rating with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). Where the schedule does not provide a zero percent evaluation for a diagnostic code a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). Facts and analysis In this case, the pertinent evidence shows that a diagnosis of GERD was assigned before the Veteran sought service connection for GERD in February 2005. Providers prescribed medication for pyrosis (heartburn). Private treatment records dated in February 2003 noted he complained of severe reflux symptoms with continued discomfort despite medication. An upper gastrointestinal endoscopy revealed a hiatal hernia with mild inflammation of the gastroesophageal junction. The treatment plan included continued medication. On VA examination in August 2005 the Veteran reported that his digestion was normal, that he had been prescribed Aciphex and Prevacid for GERD, and that he had no abdominal pain, cramping, nausea, or vomiting. The examiner noted he was well developed, well nourished, and in no acute distress. His weight was 185 pounds (lbs). The diagnoses included GERD, by history. VA treatment records dated in February 2007 show the Veteran complained of a burning sensation from his throat to the epigastric area. The examiner noted the symptoms were consistent with a past flare of acid reflux. It was noted a trial of medication was provided. A December 2008 report noted the Veteran stated Zantac was helping, but that the medication caused diarrhea. The treatment plan included a switch to Prilosec. On VA examination in February 2011 the Veteran complained of changing symptomatology with current symptoms of GERD including right-sided abdominal pain and hot sweats unrelated to food intake. He stated he used a home remedy of diluted apple cider vinegar and that he had periods of no symptomatology. The examiner noted his treatment also included medication, Omeprazole 20 milligrams (mg) twice daily. There was no history of dysphagia, pyrosis, or regurgitation. The Veteran's overall general health was good and his weight was 200 lbs. It was noted he was working fulltime as a real estate agent and that his GERD had no effect on his usual occupation or usual daily activities. At his May 2013 VA examination the Veteran reported he was taking Prilosec and that he became symptomatic if he did not take his medication and follow a GERD diet. The examiner noted symptoms of GERD including infrequent episodes of epigastric distress, pyrosis, and regurgitation. There were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his GERD. The disorder was found to have no impact on his ability to work. The examiner noted that an opinion as to the dates of increases or decreases in severity of GERD symptomatology could not be provided without resort to mere speculation. It was noted, however, that GERD was considered a lifetime disease and would have to be managed for his lifetime. Based upon the evidence of record, the Board finds the Veteran's service-connected GERD has been manifested throughout the appeal period by intermittent symptoms of pyrosis and/or right-sided abdominal pain that were generally controlled by diet and medication, and remain generally controlled by diet and medication. However, the Veteran experiences increased symptoms any time he fails to take his medications, and, at times, has experienced increased symptoms when the prescribed medications become ineffective. The Veteran periodically was required to change the medication used for GERD because his medication would become ineffective. At such times, the symptoms of GERD would increase until an effective medication could be found. The medical evidence shows that upon VA examination in August 2005 the Veteran reported his digestion was normal and he denied abdominal pain, cramping, nausea, or vomiting, as long as he continued to take his medication. The examiner noted he was well nourished and that his weight was 185 lbs. Subsequent VA treatment records show he complained of increased symptoms and that his medication regime was adjusted. On VA examination in February 2011 he reported current symptoms of GERD including right-sided abdominal pain and hot sweats unrelated to food intake. The examiner stated there was no history of dysphagia, pyrosis, or regurgitation; however, that report is not consistent with the clinical records, which clearly reflect that the Veteran had pyrosis and regurgitation when he initially sought evaluation, and that those symptoms recurred when he failed to take medications or when his medication became ineffective. At all times throughout the appeal period, the Veteran's overall general health was good. His weight increased from 185 pounds at his August 2005 examination to 203 lbs and gradually decreased to 200 pounds as part of his overall medical management. It was specifically noted that his GERD had no effect on his usual occupation or usual daily activities, as long as he adhered to his medication regimen and the medication he was using was effective. The Board also finds that the Veteran's GERD has been relatively stable throughout the appeal period, and is manifested by pyrosis and regurgitation that are not productive of a considerable impairment of health whenever the Veteran fails to adhere to his medication regimen or when the medication used becomes ineffective. Although the examiner noted symptoms of GERD included infrequent episodes of epigastric distress, the records reflect that the symptoms are persistently recurrent since initial diagnosis in 2003, at any time the Veteran fails to comply with the medication regimen or the medications become ineffective. The examiner also noted there were no other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his GERD and the disorder was found to have no impact on the Veteran's current ability to work. The Veteran stated, in essence, that he was only symptomatic if he did not take his medication and follow a GERD diet. Resolving doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise to warrant a 10 percent evaluation throughout the appeal period. There is no subjective or objective evidence that he has experienced symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health nor symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The evidence establishes that the Veteran has not met the criteria for a 30 percent evaluation at any time during the appeal period. The Board acknowledges the Veteran, as a lay person, is competent to provide evidence of his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). There is no evidence, however, of more severe GERD symptoms at any time during the course of this appeal. Therefore, the claim for an initial rating in excess of 10 percent for GERD must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating. The Veteran's service-connected GERD is adequately rated under the available schedular criteria and the objective findings of physical impairment are well documented. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a Veteran is entitled to extraschedular rating consideration. First, 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, 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 and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The overall evidence of record in this case is not indicative of a marked interference with employment as a result of the service-connected GERD disability. In fact, the May 2013 VA examiner found the disorder had no impact on the Veteran's ability work, in light of the Veteran's ability to adhere to the medication regimen and dietary limitations that assisted in control of symptoms. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to an initial compensable rating for GERD prior to May 16, 2013, is granted, but the appeal for a rating in excess of 10 percent from May 16, 2013, is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs