Citation Nr: 1329458 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 07-34 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a compensable initial disability rating for gastroesophageal reflux disease (GERD) with hiatal hernia, prior to January 3, 2011. 2. Entitlement to an initial disability rating in excess of 10 percent for GERD with hiatal hernia, from January 3, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1981 through November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for GERD and assigned a noncompensable initial disability rating, effective from December 1, 2005. Original jurisdiction over this matter was subsequently transferred to the RO in Baltimore, Maryland. A timely Notice of Disagreement (NOD) challenging the assigned initial disability rating was received from the Veteran in July 2007. After a Statement of the Case (SOC) was issued in August 2009, the Veteran perfected his appeal in September 2009, via VA Form 9 substantive appeal. The Veteran testified during a September 2010 hearing that was held at the Board's Central Office in Washington, D.C. A transcript of this testimony is associated with the claims file. In December 2010, the Board remanded this matter for further claims development, to include contacting the Veteran to obtain additional information and records pertaining to treatment and arranging the Veteran to undergo a VA examination of his GERD. In the course of subsequent development, the Appeals Management Center in Washington, D.C. issued an April 2012 rating decision which granted a 10 percent disability rating for GERD, effective from January 3, 2011. The Veteran continued his appeal for a higher disability rating for GERD and the matter was subsequently returned to the Board. In September 2012, the Board determined that the January 2011 VA examination that was performed pursuant to the Board's prior remand was inadequate because it was performed by the examiner without the benefit of a claims file review. Moreover, the Board noted, a comprehensive discussion of previous endoscopy testing was not included in the examiner's report. For these reasons, the Board remanded this matter again to arrange for the Veteran a new VA examination of his GERD. The Board is satisfied that the development action directed in its most remand has been performed and is prepared to proceed with its de novo consideration. This appeal also initially included numerous other issues, including service connection for bilateral testicle pain, a left knee disorder, left wrist ganglion cyst, and other left wrist disorders, and for higher initial disability ratings for service-connected prostatitis, bilateral tinea pedis, bilateral dry eyes, hemorrhoids, pseudofolliculitis barbae, right fifth metatarsal disability, and residual surgical scars on both feet. These issues, however, were withdrawn by the Veteran during his hearing or were fully adjudicated by previous Board decisions issued in December 2010 and September 2012. Accordingly, they do not remain before the Board on appeal. FINDINGS OF FACT 1. Prior to September 13, 2010, the Veteran's GERD with hiatal hernia was manifested by intermittent heartburn. 2. From September 13, 2010, the Veteran's GERD with hiatal hernia has been manifested by intermittent heartburn and regurgitation; however, has not been manifested by any other symptoms. CONCLUSIONS OF LAW 1. The criteria for a compensable initial disability rating for GERD with hiatal hernia have not been met or approximated for the period before September 13, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). 2. The criteria for a 10 percent initial disability rating, and no more, for GERD with hiatal hernia have been met for the period from September 13, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a December 2005 letter notified the Veteran as to the evidence necessary to substantiate his claim for service connection, as well as the respective reponsibilities of the Veteran and VA in obtaining such evidence. The letter did not, however, provide any notice as to the assignment of disability ratings and effective dates in accordance with Dingess. Nonetheless, a subsequent June 2006 letter provided the Veteran with the notice required under Dingess. After issuance of this letter, and after the Veteran was given an opportunity to respond, the Veteran's claim for service connection for GERD was readjudicated in an August 2007 SOC. Hence, the Veteran is not shown to be prejudiced by the late timing of this notice. 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). Moreover, to the extent that the Veteran has received adequate notice in relation to his claim for service connection for GERD, such notification would also apply to the "downstream" issue of entitlement to a higher initial disability rating for that disability. In that regard, the United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the VCAA notice concerning the issue of service connection for GERD was legally sufficient, VA's duty to notify as to the issue of entitlement to a higher initial disability rating for that disability has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, VA treatment records, claims submissions, and hearing transcript have been associated with the record. VA examinations to assess the nature, etiology, and severity of his GERD with hiatal hernia were performed in February 2006, January 2011, and November 2012. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the severity and manifestations of the Veteran's GERD with hiatal hernia throughout the course of the relevant appeal period. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation 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. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. Throughout the course of this appeal, the Veteran's GERD with hiatal hernia has been rated in accordance with the criteria under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346. Under DC 7346, which is applied for disabilities analogous to hiatal hernia, a 10 percent disability rating is assigned for disabilities manifested by two or more of the symptoms required for a 30 percent rating of less severity. A 30 percent disability rating is assigned for disabilities marked by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum schedular 60 percent disability rating is assigned for disabilities marked by pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Consistent with Schafrath, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, however, the Board finds that there are no other potentially applicable criteria that may be used to rate the Veteran's GERD with hiatal hernia. In his May 2006 NOD and October 2007 substantive appeal, the Veteran simply alleges without elaboration that he is entitled to higher disability ratings for his service- connected GERD with hiatal hernia. During a February 2006 VA examination, the Veteran reported having symptoms attributable to GERD since the 1980's, and specifically reported substernal burning that occurred one hour after eating and which lasted for periods of up to two days. The Veteran expressly denied experiencing any weight loss or dysphagia. No other symptoms were reported or noted during the examination. Private treatment records from Dr. J.G.C., dated from May 2006 through May 2007 do not pertain to any treatment for GERD or hiatal hernia; nor do they reference any complaints of symptoms related to that disorder. VA treatment records dated from April through October of 2008 also do not reflect any treatment for GERD. These records reflect that the Veteran's weight remained generally stable, ranging from 165.5 to 171.8 pounds. Again, no gastrointestinal symptoms are noted in the VA treatment records. During his September 2010 hearing, the Veteran testified that he believed that his GERD was worsening and recalled a recent instance in which he experienced nighttime reflux that became "caught in [his] throat." He also testified that he experienced ongoing burning sensations that caused him to sleep in a seated position to avoid the risk of choking in his sleep due to regurgitation. He stated that he received a barium enema during VA treatment which revealed the presence of a hiatal hernia and reflux. Indeed, an April 2010 upper GI study is reprinted in a later November 2012 VA examination report and reflects findings of a "very tiny intermittently demonstrated hiatal hernia." Regarding his current symptoms, he reported ongoing burning and regurgitation in his chest, but denied having any pain in his arm or other symptoms. Somewhat consistent with his VA treatment records, he stated that his weight ranged from 150 to 160 pounds. During a January 2011 VA examination, the Veteran reported the onset of GERD in the 1990's, manifested at the time of onset by heartburn and regurgitation. He reported that these symptoms have been stable since onset and that he currently experiences weekly regurgitation of clear fluid. Once again, the Veteran mentioned to the examiner that he had recently been diagnosed with hiatal hernia following a barium enema; however, he denied any prior hospitalization or in-patient care for GERD and continued to deny symptoms of nausea, vomiting, dysphagia, esophageal distress, hematemesis, melena, or esophageal dilation. He also denied missing any work due to his GERD and did not report any impairment of daily activities. On examination, the Veteran weighed 165 pounds and did not exhibit any signs of significant weight loss or malnutrition. The examiner confirmed the previous diagnoses of GERD and hiatal hernia and, apparently based upon history, opined that the Veteran was not experiencing any significant effects on his occupation or daily activities. During the Veteran's November 2012 VA examination, he continued to report a history of GERD that began in 1998 and initially treated with antacids. According to the Veteran, he continued to experience intermittent episodes of GERD that occurred once every six to seven months and was manifested by heartburn and regurgitation. Interestingly, he stated that his reported symptoms were particularly present after going to bed immediately after eating late night meals. Once again, he did not report any impairment of his activities of daily living. During the examination, the examiner reviewed the aforementioned April 2010 upper GI study. Based upon the examiner's review of the claims file, clinical findings noted in the April 2010 study, the Veteran's history, and the findings from the examination, the examiner again confirmed the previous GERD and hiatal hernia diagnoses and opined that the Veteran's GERD and hiatal hernia did not impact his ability to work. The evidence prior to the Veteran's September 13, 2010 hearing shows that the Veteran's GERD with hiatal hernia was manifested essentially by intermittent heartburn, and that such manifestations were not productive of considerable impairment of health. In the absence of any evidence showing that his disability was manifested by any of the other symptoms identified under the criteria for a 30 percent or 60 percent disability rating under DC 7346, the Veteran is not entitled to a compensable disability rating prior to September 13, 2010. However, the Veteran's September 13, 2010 hearing testimony that he was experiencing heartburn and regurgitation was later substantiated by findings made during the January 2011 VA examination. To that extent, consideration of the Veteran's testimony in conjunction with the later January 2011 examination findings leads the Board to conclude that it is factually ascertainable that the Veteran's GERD was manifested by both heartburn and regurgitation as of the date of his hearing. To that extent, the evidence shows that the Veteran's GERD with hiatal hernia was manifested by two of the symptoms listed under the criteria for a 30 percent disability rating under DC 7346. Accordingly, the Board finds that the Veteran is entitled to a 10 percent disability rating for GERD with hiatal hernia, from September 13, 2010. Subsequent evidence in the record, however, does not demonstrate symptomatology that meets the requirements for a disability rating higher than 10 percent. In that regard, the complaints and findings reflected in the January 2011 and November 2012 VA examiners' opinions shows that the Veteran's GERD and hiatal hernia continued to be manifested by heartburn and regurgitation; but, were not manifested by any other symptoms listed under the criteria for a 30 percent or 60 percent disability rating under DC 7346. In that regard, there is no evidence that the Veteran experienced dysphagia, vomiting, material weight loss, hematemesis, or melena with moderate anemia; nor does the evidence support a finding that the Veteran has experienced severe, or even considerable, impairment of health. In the absence of any evidence showing such manifestations, the Veteran is not entitled to a disability rating higher than 10 percent at any time after September 13, 2010. As mentioned above, the Board has considered the potential application of various provisions of Title 38 Code of Federal Regulations, whether or not they were raised expressly by the Veteran. Schafrath, 1 Vet. App. 589. In that regard, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1) , which govern the assignment of extra-schedular disability ratings. However, in this case, the Board finds that the record does not show that the Veteran's GERD with hiatal hernia is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra- schedular referral is required. Id. , see also VAOGCPREC 6- 96 (Aug. 16, 1996). Alternatively, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular ratings for the service-connected disabilities. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his GERD with hiatal hernia. As discussed above, higher ratings are available under DC 7346, but the Veteran's disabilities are not productive of the manifestations necessary to warrant higher ratings. As such, it cannot be said that the available schedular ratings for the Veteran's disabilities are inadequate. Moreover, the Board notes that the Veteran has not reported any impairment of his occupation due to his GERD-related symptoms. In that regard, he has not reported any lost time from work or impairment in his daily activities. Indeed, based upon the Veteran's history and symptoms, VA examiners expressed in their January 2011 and November 2012 opinions that the Veteran's disability did not impact his employment. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected GERD with hiatal hernia, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111. The Board has also considered whether further "staged" disability ratings are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings for any of the disabilities under consideration. Accordingly, the Veteran is entitled to a 10 percent disability rating, and no more, from September 13, 2010 for GERD with hiatal hernia. To that extent, this appeal is granted. However, the Veteran is not entitled to a disability rating in excess of 10 percent for GERD with hiatal hernia from September 13, 2010. To that extent, this claim is denied. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a 10 initial disability rating for GERD with hiatal hernia, from September 13, 2010, is granted. Entitlement to an initial disability rating in excess of 10 percent for GERD with hiatal hernia, from September 13, 2010, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs