Citation Nr: 1324571 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-16 752 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for reflux esophagus. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2002 to November 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO, inter alia, granted service connection for reflux esophagus and assigned an initial 0 percent (noncompensable) rating, effective November 24, 2006 (the day following the Veteran's discharge from active duty). The Veteran timely perfected an appeal on multiple issues, including the disability rating assigned for reflux esophagus. In January 2010, the Board, inter alia, remanded the claim for higher rating for reflux esophagus to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. The AMC subsequently assigned an initial 10 percent rating for reflux esophagus; however, as the Veteran did not indicate that rating satisfied his claim, the matter of a higher rating was deemed to remain appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). This claim was last before the Board in March 2013, at which time the Board decided all other issues remaining on appeal, but again remanded the claim for a higher disability rating for reflux esophagus to the RO, via the AMC, for additional development and consideration. In May 2013, the AMC issued a supplemental SOC (SSOC) reflecting continued denial of an initial rating in excess of 10 percent for reflux esophagus, and subsequently returned the claim for higher rating to the Board for further appellate consideration.. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. Since the November 2006 effective date of the award of service connection, the Veteran's reflux esophagus has been manifested by epigastric distress and heartburn, regurgitation, and nausea, but no substernal or arm or shoulder pain; he has been able to maintain a steady weight and has not experienced at least considerable impairment of health as a result of reflux esophagus symptoms. 3. The applicable schedular criteria have been adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for reflux esophagus are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a January 2007 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the initial claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. After the award of service connection and the Veteran's disagreement with the initial rating assigned the April 2008 SOC set forth the applicable rating criteria (the timing and form of which suffices, in part, for Dingess/Hartman). This information was reiterated in a June 2008 letter , After the Veteran was afforded opportunity to respond, SSOCs issued in August 2008, September 2012, and May 2013 reflect readjudication of the claim. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, evidence from the Social Security Administration (SSA), and the reports of VA examinations conducted in March 2007, April 2010, and September 2012. Also of record and considered in connection with the appeal are various statements provided by the Veteran. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the paperless claims processing system revealed additional medical evidence that has been carefully reviewed. Neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the specific claim on appeal. The Board finds that no further RO action on this matter, prior to appellate consideration, is required. As regards compliance with prior remands, the Board notes that this claim was remanded in January 2010 and March 2013 to assist the Veteran with evidentiary development. In January 2010, the Board directed the RO/AMC to assist him with the collection of any outstanding records and afford him a VA examination. In March 2013, the Board directed the RO/AMC to obtain outstanding VA treatment records. As described above, the requested development was accomplished on remand, so there was compliance with these remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). As mentioned, the Veteran was afforded VA examinations with resulting medical opinions in March 2007, April 2010, and September 2012. Although the April 2010 VA examination does not explicitly state that the claims file was reviewed and the September 2012 examination report reflects that the examiner reviewed treatment records rather than the entire claims file, the Board finds that the VA examinations and accompanying opinions are adequate to decide the issues as they are predicated on interviews with the Veteran and current physical examinations. The opinions proffered considered evidence pertinent to the current (at the time of each examination) severity of his reflux esophagus and provided a complete rationale, relying on the results of interview, examination, and any records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter remaining on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. The Board notes, initially, that the RO specifically granted service connection for reflux esophagus in the July 2007 rating decision on appeal. However, the disability was claimed as, and the record includes medical references to, gastroestophageal reflux disease, or GERD. As the rating schedule does not provide specific criteria for rating reflux esophagus, or GERD, the Veteran's disability has been evaluated, by analogy to hiatal hernia, under Diagnostic Code 7346. See 38 C.F.R. §§ 4.20, 4.114. ,Diagnostic Code 7346 indicates that hiatal hernia should be rated on the basis of symptoms such as recurrent epigastric distress with dysphagia, pyrosis, and regurgitation or, in more severe situations, vomiting, hematemesis, melena, or material weight loss. 38 C.F.R. § 4.114. As these are the same manifestations or potential manifestations produced by the Veteran's disability, the Board finds that it remains appropriate to rate the service-connected disability under Code 7346. Under Diagnostic Code 7346, a maximum, 60 percent rating is assignable 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. A 30 percent rating is assignable for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent rating is assignable when there are two or more symptoms for the 30 percent rating of less severity. Id. Review of the Veteran's service treatment records reveals that he reported first experiencing symptoms of reflux in January 2006. He described his symptoms as "heartburn." During a June 2006 examination, he was diagnosed with "GERD vs. PUD" [peptic ulcer disease] and advised to seek follow-up care. Later that month, he was seen by another care provider who diagnosed esophageal reflux and prescribed prescription medication. A VA examiner diagnosed reflux esophagitis during a general medical examination conducted in March 2007. No specific symptomatology was noted, but the examiner noted that the Veteran appeared well developed and well nourished, had a weight of 189 pounds, which was his maximum weight over the past year and had not fluctuated significantly over that time. In July 2007 correspondence to VA, the Veteran stated that the March 2007 VA examiner had only asked him once about reflux. The Veteran reported that he experienced reflux on a daily basis and had to regularly treat that disability with Tums. Subsequent VA treatment notes also reflect treatment with prescription antacid. An October 2008 VA mental health treatment note reflects that the Veteran reported a four-year history of diarrhea, pre-dating his GERD. As he had been taking some different medications during that time, the health care provider advised a prescription switch to alleviate symptoms. In February 2009, at a general evaluation, the Veteran reported that he did not have any nausea or loss of appetite. He was afforded another VA examination in April 2010. The examiner observed that the Veteran had GERD that began during service and was treated with Omeprazole and Tums. The course of GERD was described as stable. The examiner noted that there was no history of hospitalization for GERD or of trauma to the esophagus. Also, there was no evidence of any anemia, dysphagia, hematemesis or melena, or esophageal dilation. However, the Veteran reported experiencing nausea as well as heartburn several times a week. He also reported regurgitation of clear fluid several times a week. The Veteran's weight was 198 pounds at the time of examination and there were no signs of malnutrition. Subsequent VA treatment notes continue to reflect use of prescription medication for reflux. Records of VA treatment for unrelated disabilities reflect that, in May and November 2010, the Veteran reported on-going nausea as a side-effect of pain medication prescribed for musculoskeletal complaints. A disability evaluation conducted as part of the Veteran's claim for SSA benefits reflects that he reported loose stools, excessive gas, indigestion, occasional nausea, and stomach pain. Those symptoms were not correlated to any specific diagnosis, but were provided in a list of gastrointestinal symptoms. VA treatment records document that the Veteran was diagnosed as having an umbilical hernia, which was surgically repaired near the end of September 2011. In May 2012, the Veteran reported experiencing umbilical area pain ever since the umbilical hernia repair. The physician observed no change in his bowel habits and no trauma to the area, but a slight "give" to the right side of the healed umbilical scar as well as tenderness to palpation. During a May 2012 general medical examination, a VA examiner observed that examination of the Veteran's mouth and throat was normal. His weight was recorded at 192, which he described as unchanged. Subsequently, in June 2012, the Veteran reported for treatment of indigestion and diarrhea. He stated that he had experienced some abdominal pain since his umbilical hernia repair, had diarrhea for about three years, and had experienced black stool for approximately 10 days. At the time of evaluation, his weight was 188 pounds. VA physicians performed stool testing, confirmed the presence of blood, and ordered blood tests to determine whether or not the Veteran was anemic. The blood test results did not indicate anemia. However, since the Veteran reported pain in his umbilicus region, the doctor assessed possible umbilical hernia and requested additional follow-up testing. The Veteran received another umbilical hernia repair in July 2012. In late July 2012, upon suture removal, a VA physician observed that the Veteran had "significantly less pain than pre-op." The Veteran was afforded another VA examination in September 2012. The examiner again noted that the Veteran first experienced reflux esophagus during active military service and had symptoms since that time; the Veteran reported experiencing intermittent nausea and vomiting ever since service. The Veteran reported taking Omeprazole daily to control his symptoms. The Veteran reported intermittent episodes of heartburn and vomiting, but symptoms were noted to be fairly controlled by medication. The examiner described the course of GERD since service as stable. After examining the Veteran, the examiner noted a history of vomiting, nausea, diarrhea, indigestion, heartburn, hernia, and regurgitation. The examiner also noted that the Veteran reported a history of melena with the last episode occurring approximately one month prior; the examiner noted a "work-up for melena," but did not discuss any such results. Abdominal pain was noted in the hypogastric region as occurring once every one to two weeks and lasting one to two days. The Veteran's weight was 190 at the time of examination and he reported no weight change. In regard to the functional effects of the disability, the Veteran reported, and the examiner commented, that he had to avoid lifting heavy objects or bending over too frequently as those motions exacerbated his symptoms. In early November 2012, the Veteran was seen for follow-up, at which time he reported that his GERD was better. However, as he also reported that his reflux was "not controlled fully," the clinician increased his GERD medication dose. His abdomen was non-tender. A later November 2012 VA treatment note reflects that the Veteran reported experiencing vomiting and diarrhea over the prior two days; he also reported that he had stopped taking a prescription pain medication that resulted in nausea. He was noted to not have any abdominal discomfort and was advised to drink fluids and rest. Although the November 2012 treatment note reflects only diagnosis of vomiting, an early December 2012 VA treatment note reflects that the Veteran reported that he had the flu. The pertinent evidence demonstrates, and clinicians have observed, that the Veteran has maintained a fairly steady weight ever since his discharge from active duty. As a result of his GERD, he has experienced heartburn as well as reflux and nausea. Although the Veteran has also reported experiencing melena and vomiting, the record reflects that those symptoms are not completely attributable to GERD. Specifically, the medical evidence of record reflects that melena occurred in 2012 as a symptom of a nonservice-connected umbilical hernia; no anemia was observed to result from the melena. The Veteran also has reported refluxing/vomiting clear liquid due to his GERD, but the only recorded instance of him vomiting food-in November 2012-was attributed to other causes (nausea, resulting from discontinuation of a medication).. Moreover, although he has reported some abdominal pain, he has never reported, and no medical professional has observed, dysphagia or pain in the substernal region or of the arm or shoulder as due to his service-connected reflux disorder.. Medical professionals have also consistently referred his disability as stable, and observed that he appears well-nourished, throughout the appellate period. In sum, even taking into account that the Veteran's assertions that his symptoms are aggravated upon frequent bending over or lifting of heavy objects, the evidence does not reflect that the Veteran's GERD symptoms are productive of considerable impairment of health, as required for a disability rating in excess of 10 percent. under Diagnostic Code 7346. In rendering this decision, the Board is mindful that the Veteran was last afforded a VA examination for his reflux disability September 2012, and that a subsequent, November 2012, VA treatment note reflects that he was prescribed an increase in medication for GERD. However, as he also reported an actual improvement in his symptoms at that time, and the treatment note indicates that the medication was increased in an effort to completely control all GERD symptoms, there is no indication that his reflux disability increased in severity since that last examination. As such, the Board finds that there is no basis for assigning a rating for the disability in excess of 10 percent under Diagnostic Code 7346. There also is no indication that the disability involves any factor(s) warranting evaluation under any diagnostic code for evaluating gastrointestinal disabilities (under 38 C.F.R. § 4.114 ), or under any other provision(s) of VA's rating schedule. In adjudicating this claim, the Board has considered, in addition to the medical findings and assessments, the Veteran's reported symptoms, which he is certainly competent to assert. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994).. However, the criteria for higher ratings for the disability under consideration require specific medical findings, which the Veteran does not have the appropriate training or expertise to render. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, although considered, the Veteran's own assertions are not considered more persuasive than the pertinent clinical findings of record. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the April 2008 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular rating criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. Diagnostic Code 7346 contemplates the symptoms experienced by the Veteran and more symptoms. Specifically, the Diagnostic Code refers to epigastric distress and heartburn as well as regurgitation. The rating criteria further encompass symptoms, not experienced by the Veteran, such as hematemesis, melena with anemia, and substernal/arm/shoulder pain. The criteria also contemplate the impact of such symptoms at levels not experienced by the Veteran-i.e., resulting in considerable or severe impairment of health. Here, the rating schedule more than fully contemplates the symptomatology described by the Veteran and provides for ratings higher than that assigned for more significant impairment. The Board notes that the claims file indicates treatment for symptoms not encompassed by the rating schedule, but those symptoms have been attributed to other, nonservice-connected, disabilities such as umbilical hernia. Although he has reported that his GERD symptoms are exacerbated by certain movements, such as frequently bending over or lifting heavy objects, his symptoms remain encompassed by the rating criteria. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, as the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, referral of this matter for extra-schedular consideration is not met.. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board further notes, that, in certain circumstances, a claim for total disability rating based on individual unemployability due to service-connected disability (TDIU) may be considered a component of a claim for higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, such is not the case here. Although the evidence of record reflects that the Veteran is currently employed, he has presented evidence of unemployment during the pendency of his appeal, and filed a for a TDIU in February 2010. However, his TDIU claims form makes clear that he was not contending that his GERD-either alone or in combination with other service-connected disabilities- rendered him unemployable. Further, the record reflects that the RO issued an October 2012 rating decision denying entitlement to a TDIU and the Veteran has not appealed that denial. As such, and on these facts, the Board finds that no TDIU claim has been raised in connection with the claim for a higher rating. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's reflux esophagus, pursuant to Fenderson, and the claim for a rating in excess of 10 percent for that disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for reflux esophagus is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs