Citation Nr: 1335160	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  05-13 224	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for a lumbar spine disorder.  

2.  Entitlement to service connection for a nasal/sinus disorder, to include sinusitis and rhinitis.  

3.  Entitlement to service connection for a hiatal hernia with reflux esophagitis.  

4.  Entitlement to a rating in excess of 10 percent for peptic ulcer disease, to include the question of whether the reduction to a noncompensable (0 percent) rating, effective February 14, 2006, was proper.  


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to June 1971. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

In a February 2006 Decision Review Officer (DRO) decision, the RO reduced the rating for the service-connected peptic ulcer disease from 10 percent to 0 percent, effective February 14, 2006.  The Veteran disagreed with this reduction, which is part and parcel of his claim for an increased rating.  Accordingly, the claim for an increased rating for peptic ulcer disease has been characterized as reflected on the title page.  The RO did not address the issue of whether the reduction in the rating from 10 percent to 0 percent was proper.  However, the Board's consideration of this matter results in no prejudice to the Veteran as the benefit sought (restoration of the 10 percent rating) is being granted.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

In November 2007, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript of the hearing is of record.  

In a February 2008 decision, the Board denied service connection for hypertension, heart disease, degenerative joint disease of the right knee, degenerative joint disease of the left knee, a hiatal hernia with reflux esophagitis, and sinusitis, and denied entitlement to a compensable rating for peptic ulcer disease.  A claim for service connection for degenerative joint disease of the lumbar spine was remanded to the RO via the Appeals Management Center (AMC) for further development.  

In an August 2010 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision denying the claims for service connection for sinusitis and a hiatal hernia with reflux esophagitis and the claim for an increased rating for peptic ulcer disease and remanding these claims to the Board for further proceedings.  The Court noted that it lacked jurisdiction over the claim for service connection for degenerative joint disease of the lumbar spine which was remanded.  The Court otherwise affirmed the February 2008 Board decision.  

In May 2011, the Board remanded the claims for service connection for sinusitis and a hiatal hernia with reflux esophagitis, as well as the claim for a compensable rating for service-connected peptic ulcer disease for further development.  After completing additional development, the RO continued to deny these claims, as reflected in January 2013 supplemental statements of the case (SSOCs).  Additionally, after completing the development requested in the February 2008 remand, the RO continued to deny the claim for service connection for degenerative joint disease of the lumbar spine, as reflected in a December 2012 SSOC. 

While the lumbar spine claim has previously been characterized as a claim for service connection, as will be discussed below, the claim for service connection for a lumbar spine disorder was previously denied, including in a December 1996 Board decision which was affirmed by the Court in October 1999.  Therefore, new and material evidence is required to reopen his claim.  See 38 C.F.R. § 3.156(a) (2013).  While the RO addressed the claim for service connection for a lumbar spine disorder on the merits in the September 2004 and April 2005 rating decisions, and November 2005, March 2007 and December 2012, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection.  That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996).  As the Board must first decide whether new and material evidence to reopen the claim has been received, this matter on appeal has been characterized as reflected on the title page.

In characterizing the lumbar spine claim as reflected on the title page, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008)(Federal Circuit Court holding that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury); Ephraim v. Brown, 82 F. 3d 399 (Fed. Cir. 1996).  

As will be discussed below, however, at the time of the prior final and binding denial of the claim for service connection for a lumbar spine disorder, the Veteran asserted that he had a low back disorder related to a fall in service and the evidence of record revealed findings of DDD in the lumbar spine.  Evidence associated with the claims file since that prior final and binding denial reflects the Veteran's continued assertion that his lumbar spine disorder is related to his in-service fall, as well as continued findings of degenerative changes in the lumbar spine.  In light of these facts, the Board finds that the Veteran is not seeking service connection for a differently diagnosed disease or injury, so new and material evidence is required to reopen this claim.  See Velez v. Shinseki, 23 Vet. App. 199 (2009) (In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based on distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter.).
 
In January 2005, the Veteran filed a claim for service connection for a sinus condition.  In the September 2006 rating decision, the RO denied service connection for sinusitis.  However, in light of the evidence of record (including diagnoses of sinusitis and rhinitis), and the Veteran's assertions, this claim has been recharacterized as reflected on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).
In addition to remanding a claim for service connection for degenerative joint disease of the lumbar spine in February 2008, the Board also found that the Veteran filed a timely notice of disagreement (NOD) as to entitlement to nonservice-connected pension benefits.  The Board remanded this matter for issuance of an SOC, consistent with Manlincon v. West, 12 Vet. App. 238 (1999).  The record does not reflect that the Veteran was subsequently provided such an SOC.  However, the Veteran's attorney stated in February 2011 and March 2012 letters that the Veteran's claim for nonservice-connected pension had been rendered moot as the Veteran had since been awarded service-connected benefits.  The Board found in February 2008 that the Veteran had filed a timely NOD with the RO's February 2004 decision that, while entitlement to nonservice-connected pension was granted, payment could not be made because the Veteran had excessive income.  The Board found that a March 2004 statement from the Veteran constituted a timely NOD with the February 2004 decision.  In the March 2004 statement, the Veteran stated that he had reported that his benefits from the Social Security Administration (SSA) were being withheld to repay an overpayment, but this had not been considered in determining his entitlement to pension.  In December 2005, the RO determined that the Veteran was entitled to pension benefits, effective January 1, 2004.  

In light of the Veteran's March 2004 statement that he was entitled to payment of nonservice-connected pension benefits based on withholding from his SSA benefit, the fact that he was subsequently granted payment of nonservice-connected pension benefits based on this withholding satisfies this disagreement.  No further action regarding the matter of entitlement to payment of nonservice-connected pension benefits is warranted.  
 
The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the RO in the most recent SSOCs regarding the claims for service connection for sinusitis and a hiatal hernia with reflux esophagitis and the claim for an increased rating for peptic ulcer disease.  Therefore, the Board's consideration of this evidence in addressing the claim for an increased rating for peptic ulcer disease will not result in prejudice to the Veteran. 

While the most recent SSOC regarding the lumbar spine claim did not specifically list VA treatment records from June 2000 to October 2012 as evidence considered, the RO noted that the VAMC treatment records showed continued treatment for a back condition.  Treatment records dated from June 2000 to October 2012 were added to the e-folder in October 2012 and, therefore, were of record and presumably considered in the readjudication of this claim in the December 2012 SSOC.  Moreover, even had they not been specifically considered, many of these records were previously of record or were included in the VA treatment records dated from November 2005 to October 2012 which were specifically listed in the December 2012 SSOC.  To the extent that any records which were not specifically considered, waiver of RO consideration is not required, as they show only continued treatment for back problems, which was of record and considered at the time of the December 2012 SSOC.  See 38 C.F.R. § 20.1304 (2013).

Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. 

The issues of entitlement to service connection for a nasal/sinus disorder and entitlement to service connection for a hiatal hernia with reflux esophagitis are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the claims decided below has been accomplished.

2.  In a December 1996 decision, the Board denied service connection for a low back disability.  The December 1996 decision was affirmed by the Court in October 1999 and the Veteran did not further appeal the Court's decision.  

3.  None of the evidence received since the December 1996 Board decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate this claim of entitlement to service connection for a lumbar spine disorder, or raises a reasonable possibility of substantiating the claim.

4.  The February 2006 DRO decision which reduced the rating of the service-connected peptic ulcer disease from 10 percent disabling to 0 percent disabling, effective February 14, 2006, and the March 2007, December 2012, and January 2013 SSOCs reflect that the RO failed to consider, and provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions.

5.  The Veteran's peptic ulcer disease is no worse than mild; the evidence does not reflect recurring episodes of severe symptoms occurring two or three times a year averaging 10 days in duration or continuous moderate manifestations.  


CONCLUSIONS OF LAW

1.  The December 1996 Board decision, denying service connection for a low back disability, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013).  

2.  There is not new and material evidence since the December 1996 Board decision to reopen the claim for service connection for a low back disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  As the RO's reduction of the rating for service-connected peptic ulcer disease, from 10 percent disabling to 0 percent disabling, effective February 14, 2006, was not in accordance with law, the criteria for restoration of the 10 percent rating are met.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 3.344(c) (2013).

4.  The criteria for a rating in excess of 10 percent for peptic ulcer disease have not been met or approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.114, Diagnostic Code 7305 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

Duty to Notify and Assist
	
The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been fulfilled.  The Veteran's request to reopen his claim for service connection for a low back disorder and his claim for an increased rating for his service-connected peptic ulcer disease was received in September 2003.  The Veteran was provided notice of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence in correspondence dated in October 2003.  The claims were reviewed and the February 2004 and September 2004 rating decisions were issued.  The Veteran was provided additional VCAA notice letters which addressed his claim for an increased rating for peptic ulcer disease in January 2005, after which the March 2005 SOC was issued.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim.  Notice as to this matter was provided in March 2006.  Although the March 2006 letter was not issued prior to the decisions on appeal, the Veteran's claims were readjudicated in the March 2007 and December 2012 SSOCs.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).

While the Veteran was not provided specific VCAA notice regarding the matter of whether the reduction of the rating for peptic ulcer disease from 10 percent to 0 percent, effective February 14, 2006, was proper, given the Board's decision to restore the 10 percent rating, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the claim have been accomplished.  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.

The October 2003 VCAA notice letter shows the RO advised the Veteran that his claim for service connection for a back condition had been previously denied in June 1976 and December 1996 Board decisions, and new and material evidence would be required to reopen the claim.  The letter identified the basis for the denials of service connection in the previous decisions; specifically, there was no evidence showing that the claimed condition was incurred in or aggravated by active service.  The letter further informed the Veteran of the information and evidence needed to substantiate the underlying claim for service connection, including evidence of a relationship between the current disability and an injury, disease, or event in service.  The notice requirements pertinent to the request to reopen claim for service connection for a lumbar spine disorder have been met.

The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence.  A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal.  His service treatment records, VA and private treatment records, and SSA records have been obtained and associated with his claims file/e-folder.  The Veteran was also provided with VA examinations to evaluate his lumbar spine disorder in November 2003, June 2004, and November 2012 and underwent VA examinations to evaluate his peptic ulcer disease in November 2003, December 2005, and November 2012.  

The claim for service connection for degenerative joint disease of the lumbar spine was remanded in February 2008 in order to obtain the Veteran's SSA records.  As discussed, these records have been associated with the claims file.  The claim for an increased rating for peptic ulcer disease was remanded in May 2011 to afford the Veteran a VA examination to evaluate this disability.  The Veteran was afforded a VA examination to evaluate his peptic ulcer disease in November 2012.  This examination report is responsive to the pertinent rating criteria and is, therefore, adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  There was substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

In July 2013, the Veteran through counsel argued that the November 2012 VA examination evaluating the claimed lumbar spine disorder was inadequate, as the examiner based his negative opinion on a lack of clinical evidence of treatment for this condition following service and failed to consider or address lay evidence reflecting that the Veteran's back pain continued after service.  Generally, when VA undertakes to provide a VA examination or obtain a VA opinion, even if not statutorily obligated to, it must ensure the examination or opinion is adequate.  Barr, supra.  However, the Court has held that the adequacy of an examination or opinion is moot if the Board determines that new and material evidence has not been presented.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 463-64 (2007).  Of course, the Board must still consider the results of such an examination or opinion as it would any evidence of record.  See id. As will be discussed below, new and material evidence as required to reopen the claim for service connection for a lumbar spine disorder has not been submitted.  Accordingly, the adequacy of the November 2012 VA examination evaluating the claimed lumbar spine disability is moot and further examination is not warranted.  

In his August 1990 request to reopen the claim for service connection for a low back disorder, the Veteran reported that he received treatment for his back and neck at Pine Bluff Regional Hospital in 1972 and 1973, at a physical therapy and rehabilitation center in 1989 and 1990, and at Union General Hospital in 1990.  During a December 1994 VA examination, the Veteran reported that he last saw a doctor S., about a year earlier.  In his September 2003 claim, the Veteran reported receiving treatment from a chiropractor, Dr. B., for his back from 1989 to 1992.  While some physical therapy records from 1990 are included in the Veteran's SSA records, physical therapy records from 1989, as well as records from Pine Bluff Regional Hospital, Union General Hospital, Dr. S., and Dr. B. are not of record.  

In the October 2003 VCAA letter, the RO advised the Veteran that, if he wanted VA to obtain medical records on his behalf, he should complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA).  While the Veteran responded by completing and returning 21-4142s for other healthcare providers, and reported that two other physicians he had seen (Dr. H. and Dr. B.) had been deceased for years and he would not know how to obtain their records, he has not provided releases to allow VA to obtain treatment additional physical therapy records or records from Pine Bluff Regional Hospital, Union General Hospital, Dr. S., and Dr. B.  The Veteran was again instructed to complete and return a VA Form 21-4142 if he wanted VA to obtain any medical records - these requests were dated in January 2005, May 2006, July 2011, and September 2012 letters.  While he has provided releases to enable VA to request treatment records from other healthcare providers, the Veteran has not provided releases for additional physical therapy records or records from Pine Bluff Regional Hospital, Union General Hospital, Dr. S., and 
Dr. B.  

VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO requested treatment records from the private healthcare providers for whom the Veteran submitted releases.  As the Veteran has not provided a release form for additional private treatment records; it is not possible for VA to obtain them; hence, no further action in this regard is warranted.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

During the Board hearing, the undersigned Veterans Law Judge did not specifically discuss the criteria necessary to reopen the claim for service connection for a lumbar spine disorder or to establish an increased rating for the service-connected peptic ulcer disease.  However, the Veteran was asked questions regarding the relationship between his current lumbar spine disorder and service and regarding the severity of his peptic ulcer disease.  Although the Veterans Law Judge did not specifically seek to identify any pertinent evidence that was not associated with the claims file, such was not necessary because the Veteran volunteered his treatment history and symptoms throughout the pendency of the appeal.  As the Veteran's testimony addressed the relationship between his current lumbar spine disorder and service, and he discussed symptoms and treatment for his peptic ulcer disease, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Accordingly, the Veteran is not shown to be prejudiced in regard to any deficiencies in the November 2007 hearing.  Moreover, neither the Veteran nor his representative has alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2).  See Bryant, 23 Vet. App. at 497-98. 

Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit.  In this case, given the extensive development of the Veteran's claims discussed above, the Board finds no deficiency in the Board hearing or in development of the claims.  See id. 

The Veteran has not identified any additional, relevant evidence that has not been requested or obtained.  The Veteran has been notified of the evidence and information necessary to substantiate his claims, and he has been notified of VA's efforts to assist him.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claims.

Analysis - New and Material Evidence

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).  See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).  

Regarding petitions to reopen filed on or after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

In April 1972 the Veteran filed a claim for service connection for a back condition.  This claim was denied in an October 1972 rating decision.  The Veteran sought to reopen his claim for service connection for a back condition in January 1975, asserting that he was injured during service when he fell from a truck.  His claim was denied in an October 1975 rating decision, which he appealed to the Board.  The Board denied service connection for a low back condition in a June 1976 decision.  The Veteran again attempted to reopen his claim for service connection for a low back condition in August 1990.  He reported injuring his back when he fell off a truck in service, with continued problems since.  The claim was denied in a September 1990 rating decision, which the Veteran again appealed to the Board.  In November 1994, the Board found that new and material evidence had been submitted, and reopened the claim for service connection for a low back disorder.  The reopened claim was remanded for additional development.  

In a December 1996 decision, the Board denied service connection for a low back disability.  The Veteran filed a motion for reconsideration of the December 1996 decision, which was denied in May 1997.  The Veteran appealed the December 1996 Board decision to the Court, which affirmed the decision in October 1999.  The Veteran did not further appeal the October 1999 Court decision.  The December 1996 Board decision is final as to the evidence then of record.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.

The Veteran sought to reopen his previously denied claim for service connection for a lumbar spine disorder in September 2003.  The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Here, the last final denial of the claim is the December 1996 Board decision.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The Court has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA must not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead must examine and determine if it could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118.

The evidence of record at the time of the December 1996 Board decision included the Veteran's service treatment records which reflect complaints regarding and treatment for low back pain.  These records reflect that the Veteran denied back trouble of any kind on pre-induction examination in July 1969.  Clinical evaluation of the spine was normal.  In January 1970, the Veteran complained of lumbar pain.  The impression was lumbar muscle spasm.  The following month, he continued to complain of back pain, and reported injuring his back when he fell from a truck.  X-ray was negative.  In April 1970, the Veteran complained of back pain for six months.  He denied a history of injury.  The impression was low back pain.  X-ray was again negative.  In July 1970, the Veteran reported a history of back pain for six months since being injured in a fall.  The impression was recurrent sprain.  He was issued a home exercise program from the physical therapy clinic.  In October 1970, the Veteran complained of lower back pains due to a fall from a truck eight months earlier.  In his April 1971 Report of Medical examination the Veteran reported back trouble.  On separation examination at that time clinical evaluation of the spine was normal.  

On VA examination in September 1972, the Veteran gave a history of an injury to his back in October 1969 when he fell from a moving truck.  He reported being treated with heat and medication, but denied being hospitalized.  He stated that he was presently having little difficulty.  X-ray of the lumbar spine was within normal limits.  The diagnosis was remote contusion of lumbar spine without clinical evidence of residual disability on examination.  On neuropsychiatric examination the same day, the Veteran stated, "I have trouble with my back.  It hurts in the low part.  It's a sharp pain."  

On VA examination in September 1975, the Veteran reported injuring his back when he fell from a truck in 1969.  He described constant dull, throbbing pain in his lower back which went up his back, as well as stiffness.  There were no other complaints made regarding the back.  X-rays of the spine were normal and the examiner stated that there were no orthopedic abnormalities.  On neurological examination the same date, the Veteran reported back pain above the belt line which went up to his neck.  

August and December 1990 MRIs of the lumbar spine revealed desiccation indicating DDD. On VA examination in March 1991, the Veteran again reported that his back was injured when he fell from a truck in service.  The examiner commented that the Veteran's history was "rather vague and unconvincing" as he was unable to give a clear-cut story of back difficulties definitely related to the 1970 truck injury - the Veteran implied that he had had trouble with his back ever since that fall, but did not give any details of medical history of his symptoms or treatments since that time.  

The examiner observed that the Veteran apparently did not have major back problems and worked at a factory which required considerable lifting and bending until July 1990.  The examiner stated that it appeared the Veteran had a recent back injury which was the source of limitations of motions on examination.  The examiner noted that the Veteran reported being in motor vehicle accidents two and five years earlier, but implied that these accidents did not affect his back.  X-ray of the lumbar spine was normal.  The impression was traumatic lower back injury produced by a fall from a truck in 1970 with apparent recovery on rest.  The examiner noted that the Veteran had been able to return to full duty.  The impression also included chronic lumbosacral strain with pain and limitation of motion preventing lifting or bending.  The examiner commented that the date of onset was not clear from the history, but the Veteran believed that the problem dated from 1970.  

During a January 1993 VA examination, the Veteran again described his alleged in-service back injury, and reported back pain since.  The examiner reported that the Veteran had had several VA examinations, up to and including at the end of 1979, all of which were negative for any evidence of abnormality in the lumbar spine.  The diagnosis was degenerative arthritis and degenerative disc disease of the lumbar spine.  The examiner stated, "The time element as to the occurrence of evidence of objective disease from my review of the records, I would have to conclude that the abnormalities found today have occurred since 1976."  

On VA examination in December 1994, the examiner commented that the first X-ray evidence of a back abnormality was in 1979.  The diagnoses included degenerative arthritis and DDD of the lumbar spine.  The examiner opined that the Veteran's spine abnormalities had their onset after 1976 and could not be specifically service related.  

Based on this evidence, the Board denied service connection for a low back disability in December 1996.  At the time of the December 1996 Board decision, there was evidence of a back injury in service as well as a current low back disability, but the evidence did not show a relationship between the Veteran's current low back disability and service.  

Evidence associated with the claims file since the December 1996 Board decision includes VA and private treatment records reflecting ongoing complaints regarding and treatment for low back pain, with evidence of degenerative changes in the lumbar spine.  The Veteran has continued to report back problems during and since service, for example, as reported in November 2003 and July 2005 statements.  He has also submitted a May 2006 letter from his daughter, in which she reported that he had always had serious and disabling problems with his back.  

During private treatment in March 1999, the Veteran reported lower back pain after a 1989 motor vehicle accident.  A January 2002 VA treatment note reflects that the Veteran gave a history of longstanding back pain since 1969 when he fell of a truck on active duty.  Another note from the same day indicates that the Veteran reported a chronic history of low back and neck pain at level 8/10 since a 1989 motor vehicle accident.  During VA treatment in September 2002, the Veteran gave a history of chronic low back pain since the 1980s.  The Veteran reported in July 2005 that the motor vehicle accident he was involved in "had nothing to do with my back injury."  

The diagnosis following VA examination in November 2003 was DDD of the lumbar spine previously documented.  

The diagnosis following VA examination in June 2004 included DDD of the lumbar spine.  The examiner opined that, after review of the claims file and the electronic records, it was less likely than not that the Veteran's lower back condition was due to his complaints while in service.  He commented that in 1969 the Veteran claimed no back problems, but did so the following year.  

During VA treatment in May 2005, the Veteran complained of back pain for a few months duration, with radiation to both legs.  He denied trauma.  A November 2005 treatment record reflects that the Veteran gave a history of chronic low back pain for 30 years.  

During his November 2007 hearing, the Veteran again reported injuring his back during service.  He stated that none of his doctors had stated that his back condition was related to an old injury.  He responded positively to the question of whether any of his doctors had "stated anything that could it be related to the fall [from a truck in service]."  He clarified, stating that he had told the doctor what had happened and he stated "that's probably what did it."  The Veteran's representative attempted to clarify the Veteran's testimony, asking, "So one of your VA doctors did state that your fall hurt your back?"  The Veteran responded, "Yeah they gave me, they sent me records where they say I fell off the truck and injured my back.  That was in 1975 when I went to the VA."  

An August 2011 treatment record from Dr. K.G. reflects that the Veteran had complaints of back pain for an extended period.  He reported injuring his back in the military.  

On VA back examination in November 2012, the Veteran gave a history of falling from a truck in service in 1970.  The examination report notes that the Veteran was seen several times in service for low back pain, with negative examinations and X-rays.  The Veteran reported that his back had been bothering him since this time.  The examiner noted that examinations from 1972 to 1975 showed no back disorder with negative X-rays and the 2004 VA examiner opined that the Veteran's back problem was not related to service.  The examiner acknowledged review of the claims file and stated that, while the Veteran injured his back in service, examinations and X-rays were negative and his condition appeared to be mainly muscular and he was returned to full duty.  The examiner noted that the Veteran worked in a factory until 1990 and was not seen extensively for complaints of low back pain until 1991 after he stopped working.  Therefore, the examiner opined that it was less likely than not that the Veteran's back condition was related to service.  

The evidence associated with the claims file/e-folder since the December 1996 Board decision reflects a current lumbar spine disorder; however, as there was evidence of a current low back disability at the time of the December 1996 Board decision, this evidence is cumulative and redundant.  Similarly, to the extent that the evidence associated with the claims file/e-folder since the December 1996 Board decision reflects the Veteran's reports of a back injury during service and back problems since service, there was evidence indicating an in-service back injury, and documenting the Veteran's reports of continuous pain since service at the time of the December 1996 denial.  Therefore, such evidence is also cumulative and redundant.  

The Board has carefully considered the Veteran's hearing testimony, in particular, his positive response to the question of whether any of his doctors had stated anything that indicated his current back condition could be related to his in-service fall.  However, when viewing the hearing testimony in its totality, the Veteran went on to clarify that VA had indicated in 1975 that his back was injured when he fell off the truck in service.  Thus, the Veteran's positive response to questioning appears to relate to his September 1975 VA examination report, which records the Veteran's report of injuring his low back during service when he fell from a truck.  This VA examination report was of record and considered at the time of the December 1996 Board decision.  At the time of that VA examination, X-rays of the spine were normal and no orthopedic abnormalities were found on examination.  

Also of record at the time of the December 1996 Board decision was the March 1991 VA examination report, in which the examiner included in his impression that the Veteran had a traumatic lower back injury produced by a fall from a truck in 1970 with apparent recovery on rest.  Therefore, the Veteran's testimony indicating that a physician had stated that he had a back injury as a result of his in-service fall is also essentially cumulative and redundant.  

Although new evidence has been associated with the claims file/e-folder since the December 1996 Board decision, this new evidence is not material, as it does not indicate a relationship between the Veteran's current lumbar spine disorder and service.  See Smith v. West, 12 Vet. App. 312 (1990) (holding that if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened); Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service).  Therefore, this evidence does not raise a reasonable possibility of substantiating the claim for service connection for a lumbar spine disorder.  

The June 2004 and November 2012 VA examiners also provided negative nexus opinions regarding the relationship between the Veteran's current lumbar spine disorder and service, which cannot trigger reopening of the claim.  See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material).

There is no competent evidence associated with the claims file/e-folder since the December 1996 denial, which is not cumulative and redundant, that tends to show that the Veteran's current lumbar spine disorder is related to his military service.  Therefore, the newly received evidence does not raise a reasonable possibility of substantiating the claim and is not new and material.  

As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the-doubt doctrine is inapplicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  Where there is a question as to which of two ratings shall be applied, the higher rating 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.  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 to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).   

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran was initially granted service connection for chronic peptic disease in an October 1972 rating decision.  The RO assigned an initial 10 percent rating.  In an October 1975 rating decision, the RO decreased the rating to 0 percent, effective January 1, 1976.  In a May 1991 rating decision, the RO increased the rating for peptic ulcer disease to 10 percent, effective August 20, 1990.  In September 2003, the Veteran filed his current claim for an increased rating.  In the February 2004 rating decision, the RO continued the 10 percent rating, pursuant to Diagnostic Code 7305.  In a February 2006 DRO decision, the RO reduced the rating to 0 percent, effective February 14, 2006.  The Veteran has expressed disagreement with this reduction.  

The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.114.  Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.  38 C.F.R. § 4.114.  A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.  Id.  

Diagnostic Code 7305 evaluates duodenal ulcers.  A rating of 60 percent is warranted for severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health.  A 40 percent rating is warranted for symptoms that are moderately severe, that is, less than severe but with impairment of health manifested by anemia and with weight loss; or for recurrent incapacitating episodes averaging 10 days or more in duration at least four times per year.  A 20 percent rating is warranted for symptoms that are moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations.  A 10 percent rating is warranted for symptomatology that is mild with recurring symptoms once or twice yearly.  38 C.F.R. § 4.114, Diagnostic Code 7305.  

The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R § 4.6.

The Veteran submitted his current claim for an increased rating in September 2003.  "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 

As will be discussed below, the Board finds that restoration of the 10 percent rating is warranted, but that a rating in excess of 10 percent is not warranted.  

VA treatment records reflect that, in November 2002, the Veteran was evaluated for a history of gastroesophageal reflux disease (GERD).  He reported that he had been told he had a peptic ulcer in the 1970s.  He added that he had been found to be H. pylori positive a year earlier.  He stated that he presently took Aciphex with good symptomatic relief.  He denied any lower gastrointestinal symptoms.  The assessment was GERD well controlled on Aciphex.  

On review of systems in August 2003, the Veteran reported "off and on" heartburn, but denied other symptoms.  EGD/colonoscopy revealed the stomach, pylorus, and duodenum to be normal.  During VA treatment in October 2003, the Veteran reported continued abdominal pain despite treatment with Zantac.  The assessment was probable GERD.  

On VA examination in November 2003, the Veteran reported a long-standing history of peptic ulcer disease and described symptoms consistent with periodic episodes of gas and indigestion and nausea and burning in the epigastrium.  He denied vomiting, diarrhea, and constipation and reported that he had never had a gastrointestinal bleed.  He stated that he took Zantac, had had a stable weight over the past year, and ate three meals a day.  The pertinent diagnosis was hiatal hernia with reflux esophagitis.  Upper GI series revealed a small sliding type of hiatal hernia with reflux and changes of esophagitis, but the stomach otherwise did not show any evidence of ulcer crater spasm or deformity.  The duodenal bulb, duodenal loop, and visualized proximal jejunal loops appeared unremarkable.  

In a March 2004 statement, the Veteran asserted that his ulcer condition was a daily problem.  He reported taking Ranitidine twice a day, which did not heal the disease but only helped ease the pain.  He stated that there were many foods he could not eat and described diarrhea as normal for him.  

During VA treatment in August 2004, the Veteran denied abdominal complaints, but reported occasional dyspepsia.  The assessment was peptic ulcer disease, stable on Zantac.  

Treatment records from the Veteran's private cardiologist reflect that he denied weight changes, appetite changes, nausea, vomiting, and constipation during treatment in November 2002, February, May, August, and November 2003, and February, May, and August 2004.  

In his April 2005 VA Form 9, the Veteran reported that his peptic ulcer symptoms had worsened over the years, with more frequent episodes of diarrhea, lasting 12 to 14 days "off and on."  He stated that he woke at night with burning in his stomach and throat and indicated that he had to get an antibiotic prescription at least 3 to 4 times a year because his throat became so bad he had trouble swallowing.  He added that he experienced episodes when he woke up with "a back-up from my stomach into my throat" several times a year.  

On VA examination in December 2005, the Veteran reported that he experienced symptoms of abdominal pain, nausea, vomiting, heartburn, and indigestion and was diagnosed with an ulcer after an upper GI series in the early 1970s.  He stated that his symptoms improved with medication, but, "[a] few months later, they recurred and over this year since then, he has had increased pyrosis."  The Veteran also described dysphagia, burning in his throat, diarrhea, occasional nausea and vomiting, and rare hematemesis.  He reported taking Ranitidine and Maalox for these symptoms.  

The examiner reviewed the August 2003 EGD and the November 2003 upper GI series performed in conjunction with the previous VA examination.  The portion of the examination worksheet provided to discuss findings on physical examination is blank.  The diagnoses were previous peptic ulcer disease without residual and hiatal hernia with gastroesophageal reflux and esophagitis.  The examiner stated that he had reviewed the Veteran's records and, while he was service-connected for duodenal ulcer disease, he had "absolutely no evidence of peptic ulcer disease at this time and on both EGD and upper GI series, his stomach appeared perfectly normal."  The examiner noted that the Veteran had a hiatal hernia with evidence of reflux esophagitis, but opined that this was not related to his previous peptic ulcer disease.  

Based on the December 2005 VA examination report, in a February 2006 DRO decision, the RO reduced the rating for the service-connected peptic ulcer disease from 10 percent to 0 percent, effective February 14, 2006.  The RO stated that the decreased rating for peptic ulcer disease was based on the December 2005 VA examination, in which the examiner indicated that there was absolutely no evidence of peptic ulcer disease and both EGD and upper GI series of the stomach and duodenum appeared perfectly normal.  The RO stated that a noncompensable rating was being assigned as the evidence did not show recurring symptoms once or twice yearly to support a higher rating.  

The Veteran wrote in April 2006 that he disagreed with the February 2006 reduction, stating that his condition had not improved; rather, it was worse.  He asserted that, although he had an appointment in December 2005, he was not examined, as no EGD or upper GI series was done.  He added that, while his problems with his stomach and digestive system were not as severe at some times as they were at others, they were constant.  

In a May 2006 statement, the Veteran's daughter reported that he had always had serious and disabling problems from his stomach and that he had severe diarrhea, stomach pain, and bad indigestion.  She described times when she was awakened at night because of his coughing and vomiting.  His niece also reported that the Veteran had stomach problems including diarrhea, constipation, indigestion, and stomach pains.  She stated that, most of the time, he had to sleep with his head hanging over the side of his bed to keep from choking in his sleep.  

The Veteran reported in May 2006 that he experienced gas, indigestion, periods of nausea, burning in the stomach, difficulty swallowing, regurgitation, frequent diarrhea and constipation, substernal pain, shoulder and arm pain, abdominal pain and soreness, and soreness and burning in the throat.  

In March 2007, the Veteran reported that, in a normal 12 month period, he would have three to five flare-ups of his peptic ulcer disease, lasting anywhere from one and a half to two weeks.  He added that, in recent years, the flare-ups had become more and more frequent and his medication was not controlling the flare-ups as well.  

The Veteran testified in November 2007 that he was taking medication for his ulcer and indicated that he was still having the same symptoms he experienced during and after service.   
Private treatment records reflect that the Veteran presented with a complaint of abdominal pain in April 2006.  He stated that this pain had been occurring in a consistent pattern for years.  He described the pain as a moderate burning, located in the epigastrium.  He described associated constipation, diarrhea, and nausea.  The assessment included peptic ulcer, generalized abdominal pain, and reflux esophagitis.  The Veteran complained of constipation, diarrhea, GERD symptoms, heartburn, indigestion, and nausea later in April and in May and June 2006.  He denied dysphagia, hematemesis, and melena.  The assessment in April 2006 was generalized abdominal pain while the assessment was reflux esophagitis in May and June 2006.  

A June 2006 consultation notes that the Veteran was having some difficulty with nocturnal regurgitation, occasional dysphagia, heartburn, and indigestion, and had had some weight loss or systemic symptoms.  The physician noted that he apparently had an upper GI series several years earlier showing ulcers.  The impression was dysphagia with esophageal reflux and regurgitation.  An EGD performed on the same date revealed low grade distal acute erosive esophagitis, but was otherwise negative to the second portion of the duodenum.  The stomach was unremarkable.  

The Veteran denied diarrhea, nausea, and vomiting on review of systems in January 2007.  In February 2008, the Veteran reported diarrhea but denied nausea and vomiting.  The Veteran complained of abdominal pain in October 2008.  He described the pain as having an acute onset and being intermittent for weeks and stated that the pain was moderately crampy and colicky.  On review of systems he reported nausea, diarrhea, constipation, and abdominal pain.  The pertinent assessment was generalized abdominal pain.  The Veteran denied nausea, vomiting, and diarrhea on review of systems in October 2009.  

VA treatment records reflect that, in August 2006, the Veteran reported that, despite the use of Ranitidine, his symptoms of acid reflux and epigastric pain were not under control.  His VA primary care physician started him on a proton-pump inhibitor to control symptoms related to GERD and his peptic ulcer.  On review of the gastrointestinal system in March 2009, the Veteran reported diffuse abdominal pain, but he denied nausea, vomiting, bowel changes, melena, bright red blood per rectum, belching, and GERD.

The Veteran underwent colonoscopy in April 2009 because of hematochezia.  Colonoscopy was normal, although the Veteran was noted to have external hemorrhoids.  On review of the gastrointestinal system in May and June 2009 the Veteran denied nausea, vomiting, bowel changes, melena, bright red blood per rectum, abdominal pain, belching, and GERD.  

In February 2010, the Veteran complained of abdominal pain for a month, with alternating constipation with diarrhea and occasional streaks of blood in the stool.  He also reported nausea but no vomiting.  The Veteran stated that his abdominal pain would come and go.  He reported that he had had these types of problems before, "like twice every year" but denied having a diagnosis.  He added that these episodes were not related to the type of food he ate and he denied fevers, chills, or weight loss.  The assessment was abdominal pain.  The physician noted that the Veteran had a history of ulcer disease, but the reported symptoms were not suggestive of this.  She opined that the blood noticed in his stool was probably related to his hemorrhoids.  

On review of the gastrointestinal system in March 2010 the Veteran denied nausea, vomiting, bowel changes, melena, bright red blood per rectum, and abdominal pain.  He complained of belching and GERD.  Ulcers were noted on review of the gastrointestinal system in April 2010.  

Review of systems in August, September, and December 2010, March, April, and October 2011, and May 2012 revealed the gastrointestinal system to be negative/normal.  On examination in August, September, November, and December 2010, and April 2011 the gastrointestinal system was normal.  

A November 2012 VA esophageal conditions examination reflects a diagnosis of GERD.  The examiner stated that the Veteran did not have symptoms of peptic ulcer disease.  

A November 2012 VA stomach examination, performed on the same date by a different examiner, reflects that the Veteran had been diagnosed with peptic ulcer disease.  He reported that, since his most recent examination, he woke up at night with nausea and had heartburn, but he did not vomit.  He stated that he took continuous medication, specifically, Maalox, Omeprazole, Lansoprazole, and Pepto-Bismol for control.  The examiner stated that the Veteran had recurring episodes of symptoms due to his stomach condition which were not severe, occurring four or more times per year.  The average duration of these episodes of symptoms was one to nine days.  He also reported that the Veteran experienced periodic abdominal pain which was relieved by standard ulcer therapy and recurrent nausea.  He stated that these episodes of nausea occurred four or more times per year and had an average duration of one to nine days.  The examiner indicated by marked box that the Veteran did not have any incapacitating episodes due to signs and symptoms of any stomach or duodenum condition.  He added that the Veteran did have mild right upper quadrant tenderness to palpation.  The examiner opined that the Veteran's stomach condition did not have an impact on his ability to work.  

Regarding the February 2006 reduction in rating from 10 percent to 0 percent, there are certain procedural requirements which must be met where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made.  A rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires.  38 C.F.R. § 3.105(e).

The reduction in rating, effective February 14, 2006, did not affect payment made to the Veteran, as he was receiving nonservice-connected pension benefits at the time the reduction was made.  The March 2006 letter advising him of the reduction specifically notes that the Veteran's pension payment would continue unchanged.  As such, 38 C.F.R. § 3.105(e) does not apply.  See VAOPGCPREC 71-91.  See also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  Thus, the Board will turn to the question of whether the rating reduction was proper.

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  See 38 U.S.C.A. § 1155 (West 2002).  When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).

The 10 percent rating for peptic ulcer disease was in effect for 15 years at the time it was reduced in February 2006.  As regards disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application.  See 38 C.F.R. § 3.344(c).  Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish or continue the higher evaluation.  38 C.F.R. § 3.344(a).  Ratings for disease subject to temporary or episodic improvement, e.g., gastric or duodenal ulcer, will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Id.  Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  Id.

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement.  Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The RO did not address whether the December 2005 VA examination used as a basis for the reduction was as full and complete as the examinations on which the 10 percent rating was established and continued, or whether the evidence demonstrated material improvement that would be maintained under the ordinary conditions of life.  See 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995).  Unlike the prior November 2003 VA examination, the December 2005 VA examination did not include the completion of an upper GI series.  Rather, the December 2005 VA examiner referred to prior radiological studies performed in 2003 in his examination report.  

The RO's analysis of the reduction in rating of the Veteran's peptic ulcer disease in the February 2006 SSOC also did not contain any discussion of the issue of whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Brown, 5 Vet. App. at 421.  Significantly, the Veteran reported in April 2005 that his peptic ulcer disease symptoms had worsened over the years.  Neither the February 2006 DRO decision, nor the February 2006, March 2007, December 2012, or January 2013 SSOCs included discussion of, or citation to, 38 C.F.R. § 3.344.

The failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio.  Such an omission is error and not in accordance with the law.  See Greyzck, 12 Vet. App. at 292.  See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277.  For all the foregoing reasons, the 10 percent rating for the Veteran's peptic ulcer disease must be restored, effective February 14, 2006.

The Board will now turn to the question of entitlement to a rating in excess of 10 percent for the service-connected peptic ulcer disease.  

Collectively, the evidence reflects that the Veteran's peptic ulcer disease has been no worse than mild.  

Some medical professionals have indicated that the Veteran's reported symptoms are not related to peptic ulcer disease.  Evidence indicates that some of these symptoms are related to his diagnosed hiatal hernia/reflux esophagitis.  

For example, although the Veteran reported continued abdominal pain in October 2003, the assessment was probable GERD.  Similarly, the assessment on VA examination in November 2003 was hiatal hernia with reflux esophagitis.  Upper GI series at the time of that VA examination revealed that the stomach did not show any evidence of ulcer crater spasm or deformity.  The duodenal bulb, duodenal loop, and visualized proximal jejunal loops appeared unremarkable.  

Despite his reported symptoms on VA examination in December 2005, the examiner's diagnosis was previous peptic ulcer disease without residual.  Instead, the examiner diagnosed hiatal hernia with gastroesophageal reflux and esophagitis.  The examiner's opinion that the Veteran had no residuals of peptic ulcer disease was made following review of the claims file and considered the Veteran's reports of symptoms including dysphagia, burning in his throat, diarrhea, occasional nausea and vomiting, and rare hematemesis.  A June 2006 EGD revealed low grade distal acute erosive esophagitis, but was otherwise negative to the second portion of the duodenum and the stomach was unremarkable.  The Veteran complained of abdominal pain with alternating constipation with diarrhea and occasional streaks of blood in the stool, as well as nausea, during VA treatment in February 2010.  However, the physician, who noted the Veteran's history of ulcer disease, opined that the symptoms reported by the Veteran were not suggestive of this condition.  Most recently, the November 2012 esophageal conditions VA examiner stated that the Veteran did not have symptoms of peptic ulcer disease.  

However, there is other evidence indicating that the Veteran has continued to have peptic ulcer disease.  The November 2012 VA stomach examiner completed the examination worksheet and indicated that the Veteran did have symptoms attributable to his peptic ulcer disease; specifically, recurring episodes of symptoms which were not severe, periodic abdominal pain which was relieved by standard ulcer therapy, recurrent nausea, and mild right upper quadrant tenderness to palpation.  Additionally, VA and private treatment records dated since September 2002 do include findings of peptic ulcer disease.  

While there is evidence indicating that the Veteran has manifested symptoms of peptic ulcer disease during the period in question, these symptoms do not more nearly approximate moderate peptic ulcer disease as required for a rating in excess of 10 percent.  

The evidence does not show moderate peptic ulcer disease with recurring episodes of severe symptoms two to the three times a year averaging 10 days in duration.  In this regard, although the Veteran reported in April 2005 that his symptoms had worsened and he was experiencing more frequent episodes of diarrhea, he described these episodes as lasting for 12 to 14 days "off and on" suggesting that they did not last for at least 10 continuous days.  Even if these episodes did last, on average, 10 days or more, there is no indication that such episodes of diarrhea would constitute severe symptoms as contemplated in the rating criteria.  

While the May 2006 lay statement reports that the Veteran had severe diarrhea, stomach pain, and bad indigestion, the evidence simply does not demonstrate recurring episodes of severe symptoms two to the three times a year averaging 10 days in duration.  Rather, the Veteran himself stated that his flare-ups of peptic ulcer disease (which occurred three to five times a year lasting one and a half to two weeks at a time) were not controlled "as well" with his medication, implying that they were still, to at least some extent, controlled.  While the Veteran reported intermittent abdominal pain for weeks in October 2008, he described this pain as being only moderately crampy and colicky.   Most recently, the November 2012 VA stomach examiner specifically indicated that the Veteran's peptic ulcer disease was manifested by recurring episodes of symptoms that were not severe and he indicated that the average duration of such episodes was less than 10 days.  

The evidence also does not show continuous moderate manifestations of peptic ulcer disease.  In this regard, the Veteran reported good symptomatic relief and denied any lower gastrointestinal symptoms in November 2002.  He denied any symptoms other than "off and on" heartburn in August 2003 and EGD/colonoscopy revealed the stomach, pylorus, and duodenum to be normal.  

The Veteran described his symptoms as periodic during the November 2003 VA examination.  Although the Veteran reported in March 2004 that his ulcer condition was a daily problem, he also indicated that medication helped ease the pain, thus supporting the conclusion that his symptoms did not rise to the level of moderate.  Also supporting the finding that the Veteran's peptic ulcer disease was no worse than mild is the fact that this condition was described as stable on Zantac during VA treatment in August 2004.  

The Veteran also denied pertinent symptoms, including weight changes, appetite changes, nausea, vomiting, and constipation on several dates of treatment with his private cardiologist between November 2002 and August 2004.  While the Veteran reported in April 2005 that he required a prescription because of trouble swallowing, such treatment was required only 3 to 4 times a year.  Similarly, he reported episodes of waking up from regurgitation only several times a year, as opposed to continuously.  Although the Veteran reported moderate burning pain in the epigastrium in April 2006, he stated that this pain had been occurring in a consistent pattern, so, not continuously.  

In October 2008, the Veteran complained of abdominal pain, but described it as intermittent.  Review of systems in August, September, and December 2010, March, April, October 2011, and May 2012 revealed the gastrointestinal system to be negative/normal.  Most recently, the November 2012 VA stomach examiner reported that the Veteran had only periodic (as opposed to continuous) abdominal pain which was relieved by standard ulcer therapy.  While he also noted the presence of right upper quadrant tenderness to palpation, this was described as mild.  

The pertinent evidence of record does not demonstrate that the Veteran's peptic ulcer disease more nearly approximates moderate disability, with recurring episodes of severe symptoms two to the three times a year averaging 10 days in duration or continuous moderate manifestations.  Accordingly, the criteria for a rating in excess of 10 percent are not met.  38 C.F.R. § 4.114, Diagnostic Code 7305.  

In adjudicating a claim the Board must assess the competence and credibility of the evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences symptoms such as abdominal pain, gas, indigestion, nausea, diarrhea, and vomiting.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). While the Veteran is credible in his reports of the symptoms he experiences, the medical evidence prepared by skilled neutral professional is more probative evidence with regard to the rating schedule, and thus the examination findings, including the November 2012 VA stomach examination report, are more probative of the degree of impairment resulting from the Veteran's service-connected peptic ulcer disease.  

The above determinations are based upon consideration of pertinent provisions of VA's rating schedule.  The Board has considered entitlement to an extra-schedular rating for the service-connected peptic ulcer disease.  

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996).  

If the rating schedule does not contemplate the claimant'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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

The Board finds that the schedular criteria are adequate to rate the service-connected peptic ulcer disease.  The rating schedule contemplates mild symptoms and provides higher ratings for more severe symptoms.  The symptoms of the Veteran's service-connected peptic ulcer disease are adequately compensated in the disability rating assigned.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Further, the evidence also does not indicate that the Veteran's peptic ulcer disease, alone, results in marked interference with employment above and beyond that considered by the assigned disability rating or that there have been frequent periods of hospitalization.  Significantly, the November 2012 VA stomach examiner, who reviewed the claims file, opined that the Veteran's stomach condition did not impact his ability to work.  

For the reasons discussed above, referral for consideration of an extra-schedular rating is not warranted.  

The Board has considered the benefit-of-the-doubt doctrine but the preponderance of the evidence is against assignment of a rating in excess of 10 percent for the service-connected peptic ulcer disease.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

New and material not having been submitted, the request to reopen the claim for service connection for a lumbar spine disorder is denied.  

Restoration of a 10 percent rating for peptic ulcer disease, effective February 14, 2006, is granted. 

A rating in excess of 10 percent for peptic ulcer disease is denied.  

REMAND

Remand is required to obtain supplemental medical opinions regarding the claims for service connection for a nasal/sinus disorder and a hiatal hernia with reflux esophagitis.  Although the examinations requested in May 2011 were completed, their conclusions are based on an apparently inaccurate factual premise or are not otherwise adequately explained.  The remaining issues are REMANDED for the following action:

1. Provide the Veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises him of the information and evidence necessary to substantiate the expanded claim for a nasal/sinus disorder, to include sinusitis and rhinitis.

2.  Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his nasal/sinus disorder and/or hiatal hernia with reflux esophagitis.  After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file or Virtual VA e-folder.  

A specific request should be made for VA treatment records dated since October 2012.

If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.

3.  After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the physician that conducted the November 2012 VA sinusitis examination, if available, for a supplemental medical opinion.  The claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

The examiner must identify all nasal/sinus disorders present since September 2003 (when the Veteran filed his claim for service connection), to include sinusitis and/or rhinitis.  IN REGARD TO EACH DISORDER, THE EXAMINER MUST PROVIDE A FULLY EXPLAINED OPINION AS TO WHETHER THE DISORDER BEGAN DURING ACTIVE SERVICE OR IS OTHERWISE CAUSED OR AGGRAVATED BY ACTIVE SERVICE. 

As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following:

* Service treatment records reflect that, in December 1969, the Veteran received treatment for an acute, diffuse upper respiratory infection.  A July 1970 X-ray revealed the sinus cavities to be normal; however, the nasal turbinates appeared to be markedly engorged, more so on the right.  The radiologist opined that these findings were compatible with an allergic rhinitis.  On separation examination in April 1971, clinical evaluation of the nose and sinuses was normal.  

* On VA examination in March 1991 the Veteran described frequent attacks of sinusitis.  Examination of the nose, sinuses, mouth, and throat was normal.  X-ray revealed normal sinuses.  The pertinent diagnosis was history of recurrent sinusitis.  

* In April 1991, the Veteran underwent surgery for nasal obstruction and sinusitis secondary to a deviated nasal septum and a left concha bullosa.  A May 1991 follow-up note reflects that the Veteran was able to breathe through his nose.  

* The Veteran received treatment from his private physician in 1993 and on several dates in 1996 for sinusitis.  The assessment in February 1996 was sinusitis, pharyngitis secondary to environmental allergies.  In October 1996, the Veteran reported that he was finally better and the assessment was sinusitis, resolved.  

* In May 1999, the Veteran complained to his private physician of chest and sinus congestion and a productive cough.  He stated that he got these symptoms of an upper respiratory infection once every year.  The assessment was upper respiratory infection/sinus congestion.  The assessment following treatment in June 2000 included allergic rhinitis.  

* During VA treatment in February 2005, the Veteran complained of sinus drainage and itchy eyes.  The assessment was allergic rhinitis.  

* In his April 2006 claim for service connection, the Veteran reported that his sinusitis began during service.  In correspondence submitted with this claim he described problems with his sinuses and breathing during service, with continued sinus swelling.  

* Private treatment records document assessments of acute sinusitis in January 2007 and February 2008 and an assessment of chronic sinusitis in October 2009.  

* VA treatment records reflect that, in December 2009, the Veteran was evaluated in the ear, nose, and throat (ENT) clinic for chronic sinusitis and a right maxillary sinus cyst.  He gave a history of lifelong nasal breathing issues and reported undergoing septoplasty and sinus surgery in 1990 outside VA, with continued difficulty breathing well through his nose.  CT scan of the sinuses indicated that the Veteran was status post maxillary antrostomy.  There was a polyp or cyst in the right maxillary sinus.  All of the sinuses appeared to be well ventilated and clear.  There were very large inferior turbinates and moderate size middle turbinate concha bullosae.  

* In March 2011, the Veteran underwent surgery for nasal obstruction, left concha bullosa, and right maxillary sinus mucus retention cyst.  

* On VA examination in November 2012, the examiner indicated that the Veteran had been diagnosed with chronic sinusitis.  The Veteran reported an onset of sinusitis in late 1969 or early 1970 with nonseasonal nasal congestion and retro-orbital and paranasal sinus pressure.  He stated that he continued to experience nocturnal nasal congestion and paranasal sinus pressure.  The Veteran denied allergic rhinitis symptoms.  X-ray of the paranasal sinuses was normal.  The impression was nonallergic rhinitis, status post septoplasty, maxillary antrostomy and status post turbinate reduction, excision of concha bullosa, and revision right antrostomy with removal of sinus retention cyst.  The examiner commented that paranasal sinus X-ray was normal and there was no sinus disorder.  The examiner opined that it was less than likely that the Veteran's nasal (sinus) condition was incurred in or was aggravated beyond normal progression by service.  

In rendering the requested opinion, the examiner must consider and address the in-service treatment for an upper respiratory infection and the July 1970 X-ray findings, as well as the Veteran's reports of problems with his sinuses and breathing during service.  The examiner must also address the Veteran's reports of sinus swelling, breathing problems, sinus pressure, and nasal congestion since service.  The examiner is advised that the Veteran is competent to describe symptoms of sinus swelling, breathing problems, sinus pressure, and nasal congestion.

All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report.

If further examination of the Veteran is deemed necessary, arrange for the appellant to undergo VA examination to obtain the above-noted opinion.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished.  All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

4.  After all available records have been associated with the claims file or Virtual VA e-folder, forward the claims file to the physician that conducted the November 2012 VA esophageal conditions examination, if available, for a supplemental medical opinion.  The claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

The examiner must identify all esophageal disorders present since September 2003 (when the Veteran filed his claim for service connection), to include a hiatal hernia, reflux esophagitis, and/or GERD.  In regard to EACH disorder, he must provide an opinion as to whether the disorder began during active service or is related to any incident of service.  

In regard to EACH disorder, he must ALSO provide an opinion as to whether the disorder was caused or aggravated by the service-connected peptic ulcer disease.  

As indicated above, the examiner should review the record in conjunction with rendering the requested opinion; however, his or her attention is drawn to the following:

* On separation examination in April 1971, clinical evaluation of the mouth and throat was normal.  

* On VA examination in September 1975, gastrointestinal examination was normal. 

* On VA examination in September 1984, the Veteran reported taking over-the-counter antacids "now and then" for heartburn.  There was a slight degree of epigastric tenderness on deep palpation.  Upper GI series was essentially normal.  The radiologist commented that there was smooth passage of barium through the esophagus and there was no definite evidence of hiatus hernia or gastroesophageal reflux.  The diagnosis was peptic ulcer disease. 

* A March 1989 private treatment record documents complaints of epigastric pain for years, off and on.  Although difficult to decipher, the assessment appears to read gastritis, rule out peptic ulcer disease.  An April 1989 upper GI series was essentially unremarkable.  

* On VA examination in March 1991, the Veteran described gastrointestinal symptoms including indigestion.  Upper GI series, including esophagus, was normal.  The pertinent diagnosis was peptic ulcer disease.  

* A September 1998 treatment record from the Veteran's private cardiologist notes that the Veteran had a history of GERD and reflects that he reported intermittent chest discomfort "through the years" with recently increased frequency of substernal "burning" discomfort possibly related to particular foods.  The impression following treatment in March 1999 included GERD.  Records dated in February and October 2000 note a history of GERD.  

* During VA treatment in June 2000 the Veteran denied a history of reflux at that time.  A January 2002 VA treatment record includes an assessment of dyspepsia with H. pylori positive.  

* During VA treatment in November 2002, the Veteran stated that he had had reflux symptoms for more than 10 years.  

* An August 2003 EGD revealed a 3 cm. hiatal hernia.  There was no Barrett's esophagus/esophagitis.  

* On VA examination in November 2003, the Veteran reported episodes of indigestion and burning in the epigastrium.  Upper GI series revealed a small sliding type of hiatal hernia with minimal gastroesophageal reflux and changes of esophagitis.  The diagnoses included hiatal hernia with reflux esophagitis.  

* On VA examination in December 2005, the examiner noted that the Veteran had been diagnosed with an ulcer in the early 1970s.  He reported symptoms consisting of abdominal pain, nausea, vomiting, heartburn, and indigestion.  He stated that his symptoms recurred a few months later and, since then, he had had increased pyrosis.  He also described dysphagia, burning in his throat, and diarrhea, with occasional nausea and vomiting and rare hematemesis.  The diagnoses included hiatal hernia with gastroesophageal reflux and esophagitis.  The examiner opined that the Veteran's hiatal hernia with evidence of reflux esophagitis was not related to his previous peptic ulcer disease.  

* In his April 2006 claim for service connection, the Veteran reported that his hiatal hernia and reflux esophagitis began during service.  

* In May 2006, he asserted that his hiatal hernia and peptic ulcer disease were related but different.  He reported experiencing symptoms of his hiatal hernia with reflux esophagitis since service.  

* Private treatment records dated from April to June 2006 reflect findings of reflux esophagitis.  A June 2006 EGD revealed low grade distal acute erosive esophagitis.  

* During the November 2007 hearing, the Veteran testified that, during service, he experienced shoulder pain and fluid backing up in his mouth at night, resulting in gagging.  

* On VA esophageal conditions examination in November 2012, the examiner commented that there were no entries for gastrointestinal symptoms related to peptic ulcer disease or GERD in the service treatment records, and separation examination was normal.  The Veteran claimed that he had the onset of pyrosis during service.  The impression was GERD, well-controlled with present medication.  The examiner noted that, during treatment in August 2002, the Veteran reported that his GERD symptoms had their onset 10 years earlier.  The examiner opined that it was less than likely that the Veteran's GERD was incurred in or was aggravated beyond its normal progression by service.  He stated that there was no study result showing evidence of hiatus hernia.  

In rendering the requested opinion, the examiner must consider and address the Veteran's reports of esophageal symptoms, including heartburn and fluid backing up in his mouth at night, resulting in gagging, during service.  He must also address the Veteran's reports of heartburn during and since service.  The examiner is advised that the Veteran is competent to describe symptoms of heartburn, indigestion, gagging, regurgitation, and chest discomfort.

All examination findings, along with a complete explanation for all opinions expressed, should be set forth in the examination report.

If further examination of the Veteran is deemed necessary, arrange for the appellant to undergo VA examination to obtain the above-noted opinion.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

All indicated tests and studies should be accomplished.  All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

5.  Conduct any other appropriate development deemed necessary.  Thereafter, readjudicate the claims, considering all evidence of record.  If any benefit sought remains denied the Veteran and his attorney should be provided an SSOC.  An appropriate period of time should be allowed for a response.

The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs