Citation Nr: 1327333 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 13-17 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities. 2. Entitlement to a rating higher than 10 percent for gastritis esophagitis prior to July 18, 2012, and a compensable rating thereafter. (The issue of entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disabilities, is the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for gastritis esophagitis and assigned a 0 percent rating effective April 21, 2010. The RO also denied service connection for GERD. In a December 2010 rating decision, the RO assigned a 10 percent rating for gastritis esophagitis effective from April 21, 2010. In a July 2012 rating decision, the RO assigned a 0 percent rating for gastritis esophagitis effective from July 18, 2012. The Veteran testified at a video conference hearing in March 2013 before the undersigned Acting Veterans Law Judge, sitting in Washington, D.C., who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Veteran's Virtual VA file has also been reviewed as part of his appeal. The Veteran also perfected an appeal for service connection for a bilateral foot condition. However, in an April 2011 statement, he withdrew that issue from appellate consideration. Therefore, that issue is no longer before the Board, as a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to that issue. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). The issue of entitlement to service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington D.C. FINDING OF FACT Throughout the appeal period, the Veteran's gastritis has not been manifested by any nodular lesions or symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for gastritis esophagitis prior to July 18, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7307 (2012). 2. The criteria for compensable rating for gastritis esophagitis from July 18, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) 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 service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In the Veteran's July 2010 notice of disagreement (NOD), he appealed the initial disability rating assigned to his service-connected gastritis esophagitis and is presumed to be seeking the maximum benefits available under the law for that issue. Dingess; see also AB v. Brown, 6 Vet. App. 35 (1993). Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a September 2010 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). B. Duty to Assist The Veteran's service treatment records, VA treatment records, private treatment records, lay statements and hearing transcript have been associated with the claims file. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's gastritis. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). As noted above, the Veteran testified at a Board hearing in March 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the Acting VLJ elicited testimony to support the Veteran's contentions, and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's gastritis esophagitis is rated under Diagnostic Code 7307. He was assigned a 10 percent rating prior to July 18, 2012, and a 0 percent rating thereafter. Under Diagnostic Code 7307, a rating of 10 percent is warranted with chronic symptoms of small nodular lesions, and symptoms. A rating of 30 percent is warranted for chronic symptoms of multiple small eroded or ulcerated areas, and symptoms. A rating of 60 percent is warranted with chronic symptoms of severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition). B. Evidence The Veteran underwent a VA examination in June 2010. He reported no change in his stomach condition in the previous 12 months. He took his prescribed Aciphex as directed and completely abstained from NSAIDS. His condition was well-controlled. He denied a history of anemia, weight changes, nausea, or vomiting. Examination revealed normal bowel sounds. There were no masses, guarding, tenderness or rigidity of the abdomen. In a July 2010 statement, the Veteran reported that he would have to take medication for the rest of his life to avoid chronic heartburn. Private records dated November 2011 noted normal gastric biopsies. Another VA examination was conducted in July 2012. While the Veteran gave a history of symptoms associated with acid reflux, it was noted that he had no signs or symptoms due to a stomach or duodenum condition. There was no impact on his ability to work. However, the examiner stated that his prescribed Aciphex was used to decrease acid secretion and to avoid esophageal irritation. It can also be used to treat certain stomach and ulcer conditions. However, the November 2011 endoscopy report was not in the file, and it was needed to determine if the Veteran had any remaining gastritis symptoms. The June 2010 VA examiner provided a supplemental opinion in March 2012. He clarified that the Veteran's gastritis was due to NSAID use to treat service-connected disabilities. However, esophagitis was a resolved condition and GERD was not service-connected. An additional VA opinion was obtained in September 2012. The examiner reviewed the claims file, including the November 2011 records. She concluded that the Veteran had GERD, but did not have current evidence of gastritis, and his prescribed Aciphex was used to treat GERD. This was based on the November 2011 records showing normal gastric biopsies. A March 2013 letter from the Veteran's private physician noted that the Veteran continued to take Aciphex on a regular basis, and that it was working well for him. At his March 2013 hearing, the Veteran testified that he required medications for his gastritis. He reported symptoms of heartburn, as well as nausea and vomiting depending on what he ate. C. Analysis Based on the evidence of record, the Board finds that higher ratings are not warranted for the Veteran's service-connected gastritis esophagitis. As noted above, a 10 percent rating is warranted with chronic symptoms of small nodular lesions, and symptoms. Here, the evidence does not demonstrate the presence of either lesions or symptoms during the period on appeal. The Veteran reported in June 2010 that his condition was well-controlled, and he denied any symptoms. Notably, the Veteran was service-connected for gastritis due to NSAID use associated with his service-connected orthopedic disabilities, and he reported abstaining from further NSAID use. The November 2011 private records noted normal gastric biopsies, and the September 2012 opinion subsequently concluded that these findings meant there was no current evidence of gastritis, and that the Veteran's use of Aciphex was for the purpose of treating his nonservice-connected GERD. Therefore, the criteria for a 10 percent rating have not been met during the appeal period. Notably, the rating criteria do not contemplate the use of medication in evaluating gastritis. Therefore, even if the Veteran's symptoms are controlled only through the use of Aciphex or other medication, that alone does not warrant a compensable rating under Diagnostic Code 7307. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, he previously denied any symptoms associated with gastritis in June 2010. At his March 2013 hearing, he complained of heartburn, nausea and vomiting. He is not competent to attribute those symptoms to his gastritis versus his nonservice-connected GERD. However, even if they were the result of gastritis, those symptoms alone do not warrant a 10 percent rating, which requires nodular lesions as well. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). When viewed with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based 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). 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 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 claimant's level of disability and symptomatology and is found inadequate, the Board must 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's gastritis with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. That is, the rating criteria contemplate objective findings of nodular lesions and subjective symptoms, neither of which is present in this case. There is no indication that the Veteran's condition results in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER A rating in excess of 10 percent for gastritis esophagitis is denied prior to July 18, 2012. A compensable rating for gastritis esophagitis is denied from July 18, 2012. REMAND The Veteran contends that his diagnosed GERD is secondary to NSAID use associated with service-connected low back and lower extremity disabilities, or secondary to service-connected gastritis. VA opinions obtained in June 2010 and March 2012 stated that GERD was a mechanical problem of the upper valve of the stomach not related to or caused by NSAID use or gastritis. Unfortunately, the examiner did not address whether these conditions were aggravated by the Veteran's NSAID use or his service-connected gastritis. See 38 C.F.R. § 3.310 (2012). The Court has held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection. Allen v. Brown, 7 Vet. App. 439, 449 (1995). Therefore, an additional opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. The claims file must be made available to the examiner who provided the June 2010 and March 2012 opinions. After a review of the claims folder, the examiner should address the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD is aggravated by NSAID use or service-connected gastritis. If it is determined that GERD is aggravated by either NSAID use or gastritis, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: To the extent possible, if aggravation is present, the requested opinions on aggravation should assess the level of severity of GERD both before and after the aggravating effects of NSAID use and/or gastritis. If the June 2010/March 2012 VA examiner is not available, then the claims file must be forwarded to another suitable examiner, who should comply with the above instructions. If it is determined that another VA examination is warranted, then one should be scheduled. 2. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 3. After the requested development has been completed, the AMC/RO should adjudicate the merits of the Veteran's claim for service connection for GERD based on all the evidence of record, including any additional information and further development obtained as a result of this remand. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs