Citation Nr: 1331019 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-23 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial compensable disability rating for reflux esophagitis, prior to March 9, 2011. 2. Entitlement to a disability rating higher than 30 percent for reflux esophagitis, from March 9, 2011. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from April 1977 to April 2005. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case was subsequently transferred to the RO in Reno, Nevada. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Board videoconference hearing in January 2009. A transcript of this proceeding has been associated with the claims file. In March 2009, the Board remanded the matter to the agency of original jurisdiction (AOJ) for additional development. As will be discussed herein, the Board finds that the AOJ substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an April 2011 rating decision, the RO granted an increased evaluation of 30 percent for reflux esophagitis, effective March 2011. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 30 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The Board notes that in Rice v. Shinseki the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU and the evidence does not indicate that he is unemployable due to his reflux esophagitis, as he retired in April 2005 due to age or duration of work. See March 2011 VA examination. Accordingly, the Board finds that Rice is not applicable in this case. FINDINGS OF FACT 1. Prior to March 9, 2011, the Veteran's reflux esophagitis was manifested by pyrosis, and occasional regurgitation and substernal, arm and shoulder pain. 2. From March 9, 2011, the Veteran's reflux esophagitis was not manifested by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. Prior to March 9, 2011, the criteria for an initial rating of 10 percent, but no higher, for reflux esophagitis, have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2013). 2. From March 9, 2011, the criteria for a rating higher than 30 percent for reflux esophagitis have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an increased rating for his reflux esophagitis. He asserts his disability is more severe than what is represented by a noncompensable rating prior to March 9, 2011 and a 30 percent rating from March 9, 2011. Legal Criteria Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when 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, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's reflux esophagitis is rated under 38 C.F.R. § 4.114a, Diagnostic Code 7346 which pertains to hiatal hernia. Under Diagnostic Code 7346, a 60 percent rating contemplates a level of impairment that includes 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 warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted when there is two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. Analysis The issue of the proper evaluation to be assigned the Veteran's reflux esophagitis from the time period beginning with the grant of original service connection is now before the Board per Fenderson. There are two periods of time at issue here: prior to March 9, 2011, for which the RO has assigned a noncompensable disability rating; and from March 9, 2011, to the present, for which the RO assigned a rating of 30 percent disability rating. The Board will consider the proper evaluation to be assigned for both time periods. A. Prior to March 9, 2011 Evidence relevant to the level of severity of the Veteran's reflux esophagitis prior to March 9, 2011 includes a VA examination dated in December 2005. At that time, the Veteran stated that he had chronic reflux that began in 1995, at which time he was prescribed Zantac. The Veteran stated that drinking milk worked better to remove the pain than medication. There was no noted melena, weight loss or hemoptysis or any other problem. The Veteran stated that he had gained weight and that he had chest pain three to four times a week without radiation to the jaw, to the left arm. He denied dysphagia, but reported pyrosis in the mid epigastric area. The Veteran reported no reflux or regurgitation, and no nausea or vomiting. He was diagnosed with chronic gastroesophageal reflux disorder (esophagitis) and recurring chest pain, which could be related to the esophagitis. The Veteran testified during a February 2007 RO Hearing that he experienced heartburn, regurgitation, and shoulder and arm pain. See RO Transcript, pages 8-9. The Veteran was afforded another VA examination in January 2008. He reported symptoms of burning, sour taste in his mouth, and nausea with meals, specifically spicy meals, and alcohol. There was no noted dysphagia, regurgitation, hematemesis or melena, or signs of anemia. His overall health was noted to be fair. On examination, he had mild epigastric tenderness. The examiner noted that the Veteran's disability had moderate effects on exercise, sports, and feeding. VA outpatient records from January 2008 indicate the Veteran was taking medication twice a day for stomach acid. The Veteran testified in January 2009 that he experienced heartburn, difficulty swallowing, nausea, bloating, left back and shoulder pain, and regurgitation. See BVA Hearing Transcript, page 7. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). As such, based on lay statements as well as medical records, the Board finds that the Veteran is entitled to a rating of 10 percent for reflux esophagitis, prior to March 9, 2011. As noted previously, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. As above, in February 2007 the Veteran testified that he experienced heartburn, regurgitation, and shoulder and arm pain As the Veteran suffered from at least two of the symptoms for a 30 percent rating in February 2007, the Board finds that the Veteran meets the criteria for an initial 10 percent rating. As for the potential for an even higher rating, a 30 percent rating is not warranted prior to March 9, 2011, as there is no evidence that the Veteran's reflux esophagitis was productive of considerable impairment of health. For example, it was noted during the December 2005 VA examination that he had gained weight, and during the January 2008 VA examination he was noted to be in fair overall health with no signs of anemia, weight loss, or malnutrition. Accordingly, based on the Veteran's documented symptoms, the Board finds that the Veteran is entitled to an initial 10 percent disability rating, prior to March 9, 2011. B. Beginning March 9, 2011 Evidence relevant to the level of severity of the Veteran's reflux esophagitis beginning March 9, 2011 includes a VA examination dated in March 2011. At that time the Veteran stated that since his last examination, his symptoms had become worse and that he took medication on a daily basis. The Veteran reported symptoms of nausea several times a week as well as vomiting, weekly. He also reported dysphagia occasionally, esophageal distress several times a week, accompanied by substernal arm and shoulder pain frequently. The Veteran reported pyrosis several times a week and regurgitation weekly. There was no history of hematemesis or melena. His overall health was noted to be fair with no signs of anemia. The examiner noted that the Veteran had a weight loss of 10 percent compared to baseline, but there were no symptoms of significant weight loss or malnutrition. His throat was mildly erythemetous and abdomen with mildly tender in the epigastric area. The examiner noted that the Veteran's reflux esophagitis moderately impairs his overall health. Also, the examiner noted that the Veteran suffered from dysphagia, pyrosis, regurgitation and substernal pain along with shoulder and arm pain. Given the evidence of record, the Board finds that a disability rating greater than 30 is not warranted at any point subsequent to March 9, 2011. The next higher rating of 60 percent requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. While the Veteran has had symptoms of pain and vomiting, as well as some weight loss, he has denied hematemesis or melena. Furthermore, the record shows that the Veteran has not been anemic, and the March 2011 VA examiner noted that there were no signs of significant weight loss or malnutrition. Additionally, the Veteran was noted to be in fair overall general health during the most recent VA examination. Such findings are not indicative of severe impairment of health and are already contemplated in the assigned evaluation of 30 percent. Accordingly, the Board finds that the currently assigned 30 percent rating is the appropriate rating in this case and that the degree of impairment resulting from the service-connected reflux esophagitis in this case does not more nearly approximate the next higher rating. With regard to both time periods on appeal, the Board has also considered whether there are any other Diagnostic Codes pertaining to the digestive system that would result in a more favorable rating for the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 4.114. However, the evidence of record does not indicate that the Veteran's service-connected reflux esophagitis is manifested by gastric, duodenal, or marginal ulcers. 38 C.F.R. § 4.114, Diagnostic Codes 7305-06. Additionally, the evidence does not reflect that the Veteran's service-connected disability is manifested by injuries of the mouth or lips or tongue, stricture, spasm, or diverticulum of the esophagus, adhesions of the peritoneum, gastritis, postgastrectomy syndrome, injury or stenosis of the stomach, residuals of liver injury, cirrhosis of the liver, chronic cholecystitis, cholelithiasis, or cholangitis, injury or removal of the gall bladder, irritable colon syndrome, amebiasis, bacillary dysentery, ulcerative colitis, distomiasis, chronic enteritis or enterocolitis, diverticulitis, small or large intestine resection, fistula of the intestine, peritonitis, impairment of sphincter control, stricture of the rectum or anus, prolapsed rectum, fistula in ano, hemorrhoids, pruritis ani, inguinal, ventral, or femoral hernia, visceroptosis, malignant or benign neoplasms of the digestive system, chronic liver disease, pancreatitis, vagotomy, liver transplant, or hepatitis C. 38 C.F.R. § 4.114, Diagnostic Codes 7200-7301, 7307-45, 7347-54. Extraschedular Consideration The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that 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). 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 Veteran's reflux esophagitis is inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. For example, the Veteran experiences pain, regurgitation, dysphagia and vomiting, all of which are contemplated by the rating schedule. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalizations for his disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture - the Veteran is currently being treated by medications normally used for reflux disorders. In short, there is nothing in the record to indicate that the disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The appellant was notified that his claim was awarded with an effective date of May 1, 2005, the date of his claim, and a noncompensable rating was assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Although he was not provided pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, he was assigned the date of the claim as an effective date, the earliest permitted by law. 38 U.S.C.A. § 5110(a). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran physical examinations. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Veteran was also provided an opportunity to set forth his contentions during a Board hearing before the undersigned in January 2009. The Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues, and (2) to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ noted the issue on appeal. In addition, the Acting VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claims. It is noteworthy that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the VLJ hearing. Moreover, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that hearing is thus legally sufficient. In March 2009, the Board remanded the case for additional development, to include affording the Veteran a contemporaneous VA examination in order to determine the current nature of his reflux esophagitis, which was accomplished in March 2011. The March 2011 VA examination report is adequate to decide the case. Therefore, the Board finds that the AOJ has substantially complied with the March 2009 remand directives such that no further action is necessary in this regard. See D'Aries, supra. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Prior to March 9, 2011, an initial disability rating of 10 percent, but no higher, for the Veteran's reflux esophagitis is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. From March 9, 2011, a disability rating higher than 30 percent for the Veteran's reflux esophagitis is denied. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs