Citation Nr: 1330733 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-26 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected gastrointestinal reflux disease (GERD). 2. Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine strain. 3. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine strain. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to December 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2013, the Veteran was scheduled for a travel board hearing before the Board. However, he failed to appear. FINDINGS OF FACT 1. The Veteran's GERD is characterized by dysphagia, pyrosis, and material weight loss. 2. Cervical spine strain is manifested by forward flexion to 28 degrees at worst without evidence of ankylosis, neurological abnormalities, or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during a 12-month period. 3. Lumbar spine strain is manifested by forward flexion to 50 degrees at worst without evidence of ankylosis, neurological abnormalities, or incapacitating episodes having a total duration of at least four weeks, but less than six weeks during a 12-month period. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent disability evaluation, and no higher, for GERD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.114 Diagnostic Codes 7399-7346 (2013). 2. The criteria for disability rating in excess of 20 percent for cervical spine strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). 3. The criteria for disability rating in excess of 20 percent for lumbar spine strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. June 2008 and June 2009 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in November 2007, June 2008, and October 2009; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the reports of the VA examinations are based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, 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 considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable, based upon the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). GERD At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App 119 (1999). The RO has evaluated the Veteran's GERD under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346 at 10 percent. The use of two rating codes and a "99" denotes a rating by analogy. 38 C.F.R. §§ 4.20, 4.27. Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 60 percent rating is warranted for a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis (vomiting of blood) or melena (black, tarry feces associated with gastrointestinal hemorrhage) with moderate anemia (a decreased number of red blood cells); or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted for a hiatal hernia with persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation, of less severity. The clinical evidence of record since the effective date of service connection supports a 30 percent rating for GERD under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. The November 2007 VA examination reveals that the Veteran had symptoms of epigastric and sternal pyrosis, daily reflux that was well-controlled by medication, and nausea. The Veteran reported having lost 30 pounds over the past year due to anorexia and has vomited when his nausea increases. VA treatment dated December 2007 states that the Veteran lost significant weight due to nausea and stomach pain. During VA treatment in February 2009, the Veteran's gastrointestinal (GI) examination was normal with soft abdomen, non-tender to touch with active bowel sounds over all 4 quadrants and he tolerated his diet and oral medications without GI complaints. He denied nausea or vomiting. September 2009 treatment also revealed a normal GI evaluation. During the October 2009 VA examination, the Veteran was diagnosed as having severe GERD. The Veteran was reported having dysphagia once a week usually with solid foods, daily heartburn and epigastric pain, melena a few times, reflux or regurgitation once during the day and once during the night, and daily nausea. The examiner noted that the Veteran lost 30 pounds due to decreased appetite in one year and had signs of anemia. In December 2009, the Veteran was seen for nausea and abdominal pain, the etiology was not certain and the symptoms resolved following treatment. The Veteran was found to have possible pancreatitis with elevate lipase due to heavy drinking. In July 2011, the Veteran was treated for mild nausea with no vomiting. During follow-up treatment for alcohol detoxification, the Veteran was diagnosed as having mild anemia. Although VA treatment records generally showed normal GI evaluations, the Veteran was also found to have during the VA examinations dysphagia, regurgitation and pyrosis - symptoms associated with a 30 percent rating - and material weight loss, occasional melena, and mild anemia - symptoms associated with a 60 percent rating. Based on the cumulative medical findings, and attributing the benefit of the doubt to the Veteran, the Board finds that a 30 percent rating is warranted throughout the appellate period. The Board further finds that a rating in excess of 30 percent is not warranted because the Veteran's symptoms more nearly approximate the criteria for a 30 percent rating. Although the Veteran had some symptoms associated with a 60 percent rating during the VA examinations, VA treatment records show that the Veteran has been predominantly asymptomatic. In addition, he was diagnosed as having only mild anemia and melena was reported as having occurred only a few times. Additionally, while acknowledging the Veteran's significant weight loss of 30 pounds over one year, this weight loss was fairly gradual. Moreover, weight loss, when considered in the absence of hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, does not warrant a 60 percent rating for any portion of the appeal period. Cervical Spine Strain and Lumbar Spine Strain While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's cervical and lumbar disabilities are currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 8199-5237. See 38 C.F.R. § 4.27. Diagnostic codes containing a "99" denote a rating by analogy; in this case, the disability is rated by analogy to the miscellaneous diseases. Review of the record shows that the cervical and lumbar spine disabilities were granted based on his in-service injuries as a result of a motorcycle accident that also caused a post-traumatic headache disorder rated under Diagnostic Codes 8199-8100. It is unclear, however, why the Veteran's cervical and lumbar spine disabilities would be rated by analogy under Diagnostic Code 8199 as was the post-traumatic headache disorder, for which a disability under the miscellaneous diseases was applicable. The Veteran's cervical and lumbar spine disabilities are not analogous to any of the disorders listed under the miscellaneous diseases. The Board finds it is more appropriate to rate the Veteran's cervical and lumbar spine disabilities solely under Diagnostic Code 5237. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Back disabilities are evaluated under the formula for rating intervertebral disc syndrome based on incapacitating episodes; otherwise, diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for next higher rating, 30 percent rating, are forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. The criterion for a 40 percent rating is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least four weeks, but less than six weeks during 12 months is rated 40. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. During the appeal period, forward flexion of the cervical spine was 28 degrees at worst and forward flexion of the lumbar spine was 50 degrees at worst. Based on these findings, a higher disability rating based on limitation of motion is not warranted for either the cervical spine strain or lumbar spine strain. 38 C.F.R. § 4.7. Factors considered under 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, supra, have been also considered. However, there is no evidence of record showing that the Veteran's range of motion of either the cervical or lumbar spine was limited by pain or functional loss. In fact, June 2008 and October 2009 VA examiners specifically stated that repeated movements did not produce further pain, excessive fatigability, weakened movements, flare-ups, or incoordination for the cervical spine and lumbar spine. The June 2008 VA examiner did estimate that the Veteran would lose about 15 to 20 percent of function due to flare-ups beyond what was noted during the examination. This would bring forward flexion of the cervical spine to 22 degrees and the lumbar spine to 56 degrees at worst, which do not warrant a rating higher than 20 percent for either the cervical or the lumbar spine disability. As for associated objective neurological abnormalities under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran has not been found to have radiculopathy of the right and left upper extremities. Although the June 2008 VA examination shows that the Veteran's reflexes were 1+ in the forearm and calcaneal tendons bilaterally and 1+ in the biceps, forearm and calcaneal tendon bilaterally during the October 2009 VA examination, both examiners diagnosed the Veteran as having cervical and lumbar strain with no radiculopathy and the neurological examinations were otherwise normal with excellent coordination and strength. Therefore, the objective medical evidence does not shows additional neurological abnormalities to warrant separate ratings. As for incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, both VA examiners stated that the Veteran had no incapacitating episodes requiring bedrest prescribed by a physician. Therefore the criteria for the next higher rating, 40 percent, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. The evidence does not show that the criteria for a higher rating for either disability were met at any time during the appeal period for the purpose of assigning a staged rating. There is no doubt to be resolved and higher ratings are not warranted. Extraschedular Consideration The rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected GERD, cervical spine and lumbar spine disabilities are adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER An initial rating of 30 percent, but no higher, for GERD is granted. Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine strain is denied. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine strain is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs