Citation Nr: 1334817	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  10-08 992	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to service-connected generalized anxiety disorder (GAD).

2.  Entitlement to service connection for irritable bowel syndrome (IBS) as secondary to service-connected GAD.

3.  Entitlement to an increased rating for GAD, currently rated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from June 1965 to December 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.


FINDINGS OF FACT

1.  The Veteran has GERD which is etiologically related to his service-connected GAD.

2.  The Veteran has IBS which is etiologically related to his service-connected GAD.

3.  The Veteran's GAD does not cause occupational and social impairment with reduced reliability and productivity.  


CONCLUSIONS OF LAW

1.  GERD is secondary to service-connected GAD.  38 U.S.C.A. § 1101 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.310(a) (2006).  

2.  IBS is secondary to service-connected GAD.  38 U.S.C.A. § 1101 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.310(a) (2006).  

3.  The criteria for a rating in excess of 30 percent for GAD are not met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The notice requirements under 38 U.S.C.A. § 5103 underwent significant changes during the pendency of the Veteran's appeal.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that, for increased rating claims, notice provided to the Veteran under 38 U.S.C.A. § 5103 need not be "veteran specific," and that VA is not required to notify the Veteran that he may submit evidence of the effect of his worsening disability on his daily life, nor is VA required to notify the Veteran of diagnostic codes that his disability may be rated under.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Nonetheless, the Board notes that the August 2009 VCAA letter informed the Veteran of the diagnostic codes that the GAD disability may be rated under, and was notified that he may submit evidence regarding the impact of his disability on his employment and daily life.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  The VCAA notice indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  

Regarding the duty to assist, the Veteran's pertinent medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  There is no objective evidence indicating that there has been a material change in the service-connected disability since the Veteran was last examined.  38 C.F.R. § 3.327(a).  

The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95.  The VA examination report is thorough and supported by the record.  This examination is adequate as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).   The Veteran was specifically examined to assess and then reassess the severity of this disability in question.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995).  The records satisfy 38 C.F.R. § 3.326.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).

Secondary Service Connection

Ordinarily, VA adjudicators must consider all potential bases of entitlement to service connection - direct, presumptive and secondary.  Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  Here, though, the Veteran's claim of service connection or GERD and IBS is entirely predicated on the notion that it these disabilities are secondary to his already service-connected GAD.  He is not alleging, and the evidence does not otherwise suggest, that his GERD and IBS disabilities were instead incurred in service.  See 38 U.S.C.A. § 1110 (West 2002).

Service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  When there is aggravation, the Veteran is only compensated for the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation.  Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006).  Irrespective of whether the claim is premised on causation or aggravation, supporting medical nexus evidence usually, though not always, is needed to associate the claimed condition with the service-connected disability.  Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).  Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006).  An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation.  Allen, 7 Vet. App. 448; 38 C.F.R. § 3.310(b).

Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection.  See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection.).  

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  But that said, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc., they are not competent to provide evidence on more complex medical questions beyond simple observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Indeed, even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive and, thus, not ultimately probative.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).  The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases.  Buchanan at 1337.  The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence.  Id.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Turning now to the facts of this particular case, as already indicated, the Veteran claims his GERD and IBS disabilities are secondary to his service-connected GAD.  He is competent to report that he has GERD and IBS symptoms in conjunction with his anxiety.  Nevertheless, since the question of the etiologically of the Veteran's GERD and IBS disabilities is a complicated matter, medical opinions have been obtained, both VA and private.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  

In October 2008 and June 2009 letters, the Veteran's private physician, Dr. A.R., indicated that the Veteran was under his care for GERD and OBS which were brought on by his anxiety.  

In November 2008, the Veteran was afforded a VA psychiatric evaluation.  In pertinent part, the examiner opined that the Veteran's GERD and IBS were as likely as not a direct or proximate result of his anxiety disorder.  The examiner noted that the conclusion was based on two pieces of information.  The first is that the GERD and IBS symptoms began with the anxiety, and not before the diagnosis of that disorder.  The second is that when the Veteran had increased anxiety, his symptoms of GERD and IBS also increased.  The examiner stated that this information was consistent with research literature showing an association or an exacerbation of gastrointestinal problems with increased stress.

The Veteran underwent various gastrointestinal testing which confirmed current disability.  He was also afforded a gastrointestinal examination in November 2008.  That examiner concluded that the Veteran had IBS which might be a secondary complication of GAD, and also GERD which she stated was less likely than not secondary to the GAD.  No rationale was provided.  

In May 2009, another VA opinion was provided which indicated that the Veteran's GERD was due to his hiatal hernia and not his GAD, but provided no opinion regarding aggravation.  The examiner also noted that the Veteran had IBS which was not shown in literature to be caused by anxiety, although anxiety had been shown to worsen symptoms of IBS.  

In sum, the private physician has indicated that there is an etiological relationship between the Veteran's GERD and IBS and his service-connected GAD.  The VA psychiatric examiner concluded the same.  The VA gastrointestinal examination indicated that the IBS may be connected to the GAD, but the GERD was not caused by it, and the May 2009 opinion basically concluded likewise.  

All of the medical evidence is competent and essentially concludes that there is an etiological connection between the Veteran's IBS and his GAD.  See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  However, the gastrointestinal opinions did not provide an assessment regarding aggravation with regard to the GERD and neither did the later May 2009 opinion, rendering those portions of the decisions less probative.  As such, the opinions provided by the private examiner as well as the VA psychiatric examiner are more thorough and persuasive, particularly as the VA examiner provided detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  

Accordingly, service connection for GERD and IBS disabilities as secondary to service-connected GAD is warranted.  


Increased Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

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.  

However, if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending.  Cf. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (Board finding that veteran had disability "at some point during the processing of his claim," satisfied service connection requirement for manifestation of current disability); Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims ("the Court") found no basis for drawing a distinction between initial ratings and increased rating claims for applying staged ratings.  Accordingly, it was held that 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.  In this case, there has not been a material change in the disability level and a uniform rating is warranted. 

The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130.  The Board notes that psychiatric disabilities evaluated under Diagnostic Code 9400 are rated according to the General Rating Formula for Mental Disorders.  

The rating criteria provides a 30 percent rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 

A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. §§ 4.125-4.130.

The Veteran has been assigned a 30 percent rating for GAD.  The Veteran does not meet the criteria for a 50 percent rating as his GAD is not shown to be productive of occupational and social impairment with reduced reliability and productivity.

The Veteran was afforded a VA examination in November 2008.  At that time, the Veteran reported that he was retired due to a heart disability and he did not cease working due to emotional reasons.  He had no problems with excessive leave or time off from work.  He also related that he found his work enjoyable and he did not have stressful situations or any personnel problems at work nor was he ever disciplined.  Socially, the Veteran had been married for over 30 years and had a good relationship with his wife.  He performed most of the homemaking and yard work at home.  He also had written a book since his retirement.  He related that he had a good relationship with his son and friends whom he talked to, kept in touch with, and saw socially.  The Veteran was taking Xanax, which was supported in VA outpatient records.  He subjectively complained of the GERD and IBS symptoms which he described in detail, also stating that he knew that when he would be anxious or under stress, those symptoms would worsen.  In addition, he related that he had difficulty sleeping, worrying, feeling anxious, having rapid heart rate, having obsessive thoughts about finances, having muscle tension and general tenseness, and having an inability to relax.  He said that he experienced his symptoms daily.  He denied having panic attacks or periods when the anxiety would exacerbate to a point where it became a panic attack.  He reported that exercise provided relief, although the symptoms returned afterwards.  

Mental status examination revealed that the Veteran was dressed casually and appropriately.  His attitude was cooperative and his motor activity was calm.  He displayed a generally euthymic mood and he described his mood as being fine.  His affect was appropriate and consistent with the topic of conversation.  His speech was normal with no impairment in the conversation.  There was no problem with perception and his thought content was coherent and organized.  There were no delusions, ideas of reference, or grandiosity.  There was no homicidal ideation.  He stated that he had thoughts of death as doctors told him that he may die to his cardiac disability.  However, he had no suicidal ideation.  He reported that he enjoyed life, his relationships, and his home life.  He was oriented times three.  His memory, concentration, and attention were intact.  He had the ability for abstraction.  His judgment was intact.  There did not appear to be a problem with impulse control.  The Veteran also appeared insightful.  The diagnosis was GAD.  His GAF was 65.  The examiner noted that generally, the Veteran was functioning quite well.

Turning the rating criteria, the Veteran does not have flattened affect.  His speech is normal.  It is not circumstantial, circumlocutory, or stereotyped.  The Veteran does not have panic attacks.  As noted, he has increased periods of anxiety, but no panic attacks.  The Veteran's memory (e.g., retention of only highly learned material, forgetting to complete tasks) is not impaired.  His judgment is not impaired.  His abstract thinking is not impaired.  He does not have disturbances of motivation and mood.  Further, the Veteran does not have difficulty in establishing and maintaining effective work and social relationships.  He described having positive work and social contacts and experiences.  

The Board further notes that a GAF rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  The Board notes that an examiner's classification of the level of psychiatric impairment, by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned.  VAOPGCPREC 10-95.

GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).  GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  GAF scores ranging between 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].  Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).  A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas.  A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute).  A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death.  See 38 C.F.R. § 4.130.

The Veteran's GAF of 65 is entirely consistent with the clinical findings which reflected mild symptoms, but that the Veteran was generally functioning pretty well, and has some meaningful interpersonal relationships.  

Accordingly, the Board concludes that the criteria for a 50 percent rating are not met.  

The Board is aware that the symptoms listed under the 50 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 50 percent evaluation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's GAD symptoms more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks when his anxiety increases.  The evidence does not support a finding of occupational and social impairment with reduced reliability and productivity.  The Veteran is retired due to cardiac disability.  He indicated that he has good relationships and had had good work experiences.

The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his GAD.  The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal is more severe than the assigned disability rating reflects.  Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal.  In this case, any lay testimony, however, has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a rating in excess of 30 percent.  

In considering the claim for a higher rating, 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).  In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, the RO or the Board must 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 Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The symptoms associated with the Veteran's GAD are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability.  There have not been any hospitalizations nor marked interference with employment.  Therefore, referral for consideration of an extraschedular rating is not warranted.



ORDER

Entitlement to service connection for GERD as secondary to service-connected GAD is granted.

Entitlement to service connection for irritable bowel syndrome (IBS) as secondary to service-connected GAD is granted.

Entitlement to an increased rating in excess of 30 percent for GAD is denied.  




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs