Citation Nr: 1328052	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  07-10 393	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Kessel, Counsel



INTRODUCTION

The Veteran served on active duty from June 2001 to September 2001 and from March 2003 to August 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The case was most recently before the Board in April 2012.  At that time, the Board denied entitlement to service connection for a low back disorder and a left knee disorder.  The Board also remanded claims of service connection for migraine headaches and a respiratory disorder, as well as the GERD rating claim, to the agency of original jurisdiction (AOJ) for additional development.  In a February 2013 rating decision, the Appeals Management Center awarded service connection for migraine headaches, maxillary sinusitis, asthma and allergic rhinitis.  In view of those granted benefits, the issue of entitlement to an initial rating in excess of 10 percent for GERD is the sole issue remaining on appeal.

Additional evidence was associated with the Veteran's electronic Virtual VA claims file subsequent to the AOJ's most recent supplemental statement of the case in December 2012.  Because the evidence is duplicative of evidence already of record or is not pertinent to the issue on appeal, a remand to the AOJ for another supplemental statement of the case is not required.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304 (2012).


FINDING OF FACT

Since the award of service connection, the Veteran's GERD has been productive of considerable impairment of the veteran's health as a result of persistently recurrent epigastric distress with vomiting, melena, dysphagia, pyrosis, and regurgitation, accompanied by substernal pain; severe impairment to health has not been shown.

CONCLUSION OF LAW

The criteria for an initial rating of 30 percent, but no higher, for service-connected GERD have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

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. 2013).  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 finds that all notification action needed to make a decision as to the issue on appeal has been accomplished.  Through a May 2006 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his underlying claim of service connection for GERD.  That letter provided the Veteran with the general criteria for assigning disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Board also finds that the May 2006 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which 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. § 5103(a) and 38 C.F.R. § 3.159(b)).  In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer.  Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability.

In any event, as is the case here, once a veteran disagrees with an initial determination of a substantiated claim, 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, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).  Consequently, further notification of how to substantiate the claim is not necessary.

There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal.  The Veteran's service treatment records have been obtained, as well as treatment records from the VA Medical Center (VAMC) in Fayetteville, Arkansas, and its associated outpatient clinic (VAOPC) in Mount Vernon, Missouri.  More recent VA treatment records were obtained pursuant to the Board's April 2012 remand.  Records from multiple private treatment providers identified by the Veteran have also been obtained.  The Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained.

Additionally, in September 2006, July 2009, and May 2012, the Veteran was provided VA examinations in connection with his claim, the reports of which are of record.  The May 2012 examination was afforded pursuant to the Board's April 2012 remand.  The examination reports contain sufficient evidence by which to evaluate the Veteran's GERD in the context of the rating criteria.  Thus, VA has properly assisted the Veteran in obtaining any relevant evidence.


II. Analysis

In October 2006, the Veteran was awarded service connection for GERD.  An initial 10 percent rating was assigned effective April 6, 2006.  The Veteran appealed for a higher initial rating.

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 apply 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 careful 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 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, 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).

The Veteran's service-connected GERD has been evaluated under Diagnostic Code 7346 for "hiatal hernia."  The rating schedule provides that a 60 percent rating is assigned 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.  A 30 percent rating is assigned 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 10 percent rating requires two or more of the symptoms for the 30 percent evaluation of less severity.  38 C.F.R. § 4.114, Diagnostic Code 7346 (2012).

The relevant evidence of record includes VA treatment records dated throughout the rating period on appeal, and VA examination reports assessing the Veteran's GERD dated in September 2006, July 2009 and May 2012.  The Veteran also received treatment for GERD from private treatment providers St. John's Regional Medical Center and Dr. A.P.W.  The Veteran has also submitted statements in which he describes his GERD symptoms.

The evidence shows that the Veteran's GERD has been manifest by several of the symptoms listed in Diagnostic Code 7346.  In regard to persistent epigastric distress, the Veteran stated that he experienced this symptom in July 2009.  Additionally, the VA examination in July 2009 and private treatment records from November 2009 tend to show that the Veteran had pain in the epigastric area as well as esophagitis.  Significantly, the May 2012 VA examiner expressly noted that the Veteran experiences persistently recurrent epigastric distress.  As to dysphagia, in July 2009, the Veteran indicated that this symptom was not present all the time.  Both the July 2009 and May 2012 VA examiners noted dysphagia as a symptom of the Veteran's GERD.

With respect to pyrosis, the Veteran has consistently complained of experiencing heartburn throughout the rating period and the symptom is documented in the VA treatment records, VA examination reports and private treatment records.  In regard to regurgitation, this symptom was denied in a January 2006 general VA examination.  However, in the three VA examinations assessing the Veteran's GERD, regurgitation was noted and it was described as frequent.  Thus, he likely experiences regurgitation as a result of his GERD.

As to whether the Veteran's GERD is accompanied by substernal or arm or shoulder pain, he stated in July 2009 that he does experience this type of pain.  VA treatment records have consistently noted complaints of pain from the Veteran's chest area to his abdomen area.  In some instances, the pain was attributed to nonservice-connected costochondritis and cholecystitis.  However, the pain was also attributed to the Veteran's GERD.  Significantly, the May 2012 VA examiner expressly noted that the Veteran had substernal arm or shoulder pain as a result of his GERD.  When resolving reasonable doubt in the Veteran's favor, the Board attributes at least some of his substernal pain to his service-connected GERD.  Furthermore, the Veteran has regularly complained of nausea and indigestion as a result of his GERD.

Based on this evidence, the Veteran's GERD has been manifest by all of the symptoms listed for a 30 percent rating.  Thus, the GERD results in a greater number of symptoms compared to the "two or more" symptoms as set forth in the criteria for a 10 percent rating.  The question becomes whether the symptoms are productive of "considerable" impairment of health to warrant a 30 percent rating or "less severity" to warrant no increase.  VA treatment records reflect that the Veteran's GERD has not been well-controlled by medication.  Records from January 2006, October 2008 and August 2009 specifically note that the Veteran's GERD was not well-controlled or his medication was being changed due to no effect.  Additionally, the July 2009 VA examiner determined that the Veteran's GERD had a "significant" effect on his occupation.

When resolving reasonable doubt in the Veteran's favor, the Board finds that the symptomatology related to the Veteran's GERD more closely approximates "considerable" impairment of health rather than less severe impairment.  Thus, in consideration of the evidence of record, the Board finds that his GERD has been productive of considerable impairment of the veteran's health as a result of persistently recurrent epigastric distress with vomiting, melena, dysphagia, pyrosis, and regurgitation, accompanied by substernal pain.  This is so since the effective date of the award of service connection.  See Fenderson, 12 Vet. App. at 126.  Accordingly, the Board concludes that the criteria for an initial rating of 30 percent have been met.  See 38 C.F.R. § 4.114, Diagnostic Code 7346.

Although a higher initial rating of 30 percent is warranted for service-connected GERD, the Board finds that a rating in excess of 30 percent is not warranted.  The evidence tends to show that the Veteran has experienced some of the symptoms listed in Diagnostic Code 7346 for a 60 percent rating.  Pain has been exhibited as described above.  As to vomiting, the Veteran has consistently reported vomiting, which the May 2012 VA examiner noted to be periodic.  Additionally, melena has been noted, which the May 2012 VA examiner characterized as transient.  Other listed symptoms have not been shown such as material weight loss.  According to VA treatment records, the Veteran's weight has increased from approximately 220 pounds to 250 pounds during the rating period and he has been assessed as obese; thus, material weight loss has not been shown.  Hematemesis and anemia have been denied by the Veteran and not found on VA examination in every instance.

More important than the specific symptoms is the impairment caused by the combination of symptoms as evident by a 60 percent rating requiring "severe" impairment of health.  As to this aspect of the claim, the Board finds that severe impairment to health has not been shown since the award of service connection.  As noted in the analysis above, the Board resolved reasonable doubt in the Veteran's favor to find that even considerable impairment has resulted from his GERD.  The level of disability contemplated by severe impairment has not been evident in the VA treatment records, VA examination reports, private treatment records or the Veteran's submitted statements.  VA treatment records reveal most recently that the Veteran works full time in security at a casino and the evidence does not show that his employment capacity is impaired beyond the level of considerable impairment.  Thus, an initial rating in excess of 30 percent is not warranted.

The above determination is based upon consideration of applicable rating provisions.  It should also be pointed out that there is no showing that the Veteran's GERD has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of his disability (epigastric distress, vomiting, melena, dysphagia, pyrosis, regurgitation, and substernal pain) have been accurately reflected by the schedular criteria.  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.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

For the foregoing reasons, the Board finds that the Veteran is entitled to an initial evaluation in excess of 10 percent for GERD-to 30 percent, but no higher.  In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine.  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

An initial 30 percent rating for GERD, but no higher, is granted, subject to the laws and regulations governing the payment of monetary awards.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs