Citation Nr: 1335374	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-23 359	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD).

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to service connection for glaucoma.

4.  Entitlement to service connection for degenerative joint disease, left knee.

5.  Entitlement to service connection for degenerative joint disease, right knee.

6.  Entitlement to service connection for bilateral pes planus.

7.  Entitlement to service connection for bilateral hearing loss.

8.  Entitlement to service connection for a right shoulder disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel


INTRODUCTION

The Veteran served on active duty from March 1986 to August 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The issues of service connection for a low back disability, glaucoma, degenerative joint disease of the right and left knees, bilateral pes planus, bilateral hearing loss and a right shoulder disability are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Effective from the date of the grant of service connection, May 19, 2009, the Veteran's GERD is more likely than not manifested by symptoms of persistently recurrent epigastric distress (pain) with pyrosis and regurgitation, accompanied by arm pain, productive of considerable impairment to health.



CONCLUSION OF LAW

With resolution of reasonable doubt in the appellant's favor, effective May 19, 2009, the criteria for an initial rating of 30 percent, but no higher, for GERD are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7346 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107.  To implement the provisions of the law, VA promulgated regulations published at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom.  38 U.S.C.A. § 51039(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The United States Court of Appeals for Veterans Claims (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits.  In the present appeal, because the appellate issue being decided below is a downstream issue from that of service connection (for which a June 2009 VCAA letter was duly sent), another VCAA notice is not required.  VAOPGCPREC 8-2003.

The Board also finds that all necessary assistance has been provided to the appellant including requesting information regarding pertinent medical treatment he may have received and requesting records from the identified providers.  In terms of VA examinations, the Veteran was afforded a pertinent VA examination in August 2009, the report of which contains sufficient findings with which to properly decide the claim for an initial rating higher than 10 percent for GERD.  The Board has considered the Veteran's representative's assertion in October 2013 that the Veteran should be afforded a new examination in light of the fact that the last examination report is over two years old.  However, findings from this examination report are sufficient to properly evaluate the Veteran's GERD.  Moreover, while the Veteran's representative relayed the Veteran's assertion that his rating is worse than his currently assigned rating of 10 percent, he did not assert that the condition itself has worsened since the August 2009 examination.  Thus, the Board finds that the August 2009 examination report is adequate for rating purposes and, as is discussed below, supports a higher rating.  Lastly, the appellant was provided with an opportunity to testify before the Board which he declined.  Under these circumstances, VA has fulfilled its duty to notify and assist the appellant in the claim being decided below and adjudication of this claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant.  See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The appeal is now ready to be considered on the merits.

II.  Analysis

The Veteran seeks an increased rating for his GERD.

Disability ratings are based on the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board notes that the appeal for a higher evaluation arises from the initial rating decision that established service connection for GERD and assigned the initial disability evaluation.  Therefore, the entire rating period is to be considered, including the possibility of staged ratings (i.e., separate ratings for separate periods of time) based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The issue has been characterized accordingly.

The Board has considered the entire record, including the Veteran's Virtual VA folder.  The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000).  Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities.

Service connection for GERD was established by an October 2009 rating decision, at which time a 10 percent rating was assigned, effective May 2009.  The Veteran contends that his disability is more severe than what is represented by a 10 percent rating. 

The Veteran is currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7346.  A 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms present for the 30 percent evaluation with less severity.  38 C.F.R. § 4.114, Diagnostic Code 7346.  A rating of 30 percent is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  A rating of 50 percent is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Id.  

As noted, the Veteran was afforded a QTC examination in August 2009.  He reported that his GERD affects his general health by weakness and inability to eat.  The condition was noted to not affect his body weight.  His reported symptoms include heartburn, epigastric pain, arm pain, reflux and regurgitation of stomach contents, as well as nausea and vomiting.  He had no dysphagia, scapular pain, hematemesis and passing of black-tarry stools.  As to frequency of symptoms, the Veteran reported that his symptoms occur weekly, with severe pain in the abdominal area and throat.  He later added that the symptoms occur intermittently, as often as weekly, with each occurrence lasting 3 hours.  He reported having 15 "attacks" in the last year.  His ability to perform daily functions during flare-ups involves rest and a feeling of having to vomit.  He takes nexium 20 milligrams daily half an hour prior to eating.  He denied ever being hospitalized due to this condition.  As to overall function, the Veteran reported that he is unable to perform occupational duties until after he takes his medication and rests.  The examiner remarked that the Veteran's GERD does not cause significant anemia and there are no findings of malnutrition.  A double upper gastrointestinal series was performed revealing normal results.

The Board finds the Veteran's GERD falls somewhere between a 10 and 30 percent rating.  As stated previously, a rating of 30 percent is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Id.  Findings at the August 2009 QTC examination include reports of heartburn (pyrosis), epigastric pain, reflux and regurgitation of stomach contents, and arm pain.  In regard to these symptoms, the Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, the Board finds the Veteran's statements to be credible.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  Considering that these symptoms occur weekly and last up to 3 hours, they are persistently recurrent.  However, the Board also notes that the Veteran was found to not have dysphagia (swallowing difficulty) at the August 2009 QTC examination.  This symptom is included in the criteria for a 30 percent rating.  

Thus, there is reasonable doubt with respect to the question of whether the Veteran meets the criteria for a 30 percent rating under Code 7346 for the period from May 2009, for service-connected GERD.  That is, whether his GERD symptomatology is productive of considerable impairment in health.  Thus, by resolving reasonable doubt in his favor, the claim for a higher, 30 percent rating, for this period is granted.  38 C.F.R. § 4.3.  

The Veteran is not entitled to a rating higher than 30 percent; however, as the evidence of record does not demonstrate that he has material weight loss due to GERD, nor does he have hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  Rather, findings in August 2009 revealed that the condition did not affect body weight and there was no hematemesis, the passing of black-tarry stool (melena) or significant anemia.  

The Board has also considered whether any alternate Diagnostic Codes allow for a higher evaluation.  However, the Board finds that the most appropriate rating criteria is Diagnostic Code 7346, as the Veteran's symptoms more closely approximate that rating criteria.

Further, the Board finds that the evidentiary record presents no reason to refer this matter to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b).  There is no evidence of symptoms or impairment not encompassed by the schedular criteria, so as to render those criteria inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The Veteran's symptomatology is contemplated in the schedular rating criteria.  Finally, a July 2009 QTC psychiatric examination report notes that the Veteran does computer work and is thus employed.  Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record.



ORDER

Entitlement to an initial rating of 30 percent, but no higher, for GERD is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits.


REMAND

The Board finds that additional development is necessary in order to properly decide the Veteran's claims for service connection for a low back disability, glaucoma, degenerative joint disease of the right and left knees, bilateral pes planus, bilateral hearing loss and a right shoulder disability. 

Such development involves affording the Veteran new VA examinations in order to accurately assess the nature and etiology of these claimed disabilities.  In this regard, the record shows that the Veteran was afforded a QTC general examination in August 2009, but he was not evaluated for the disabilities currently on appeal.  His representative pointed this out in written argument in October 2013 (see Virtual VA folder) and requested that the Veteran be afforded examinations that specifically address his presently claimed disabilities.  The Board agrees.  Such examinations are necessary in light of inservice documentation involving left ear high frequency hearing loss, a right eye injury, a right shoulder complaint, low back pain, knee symptomatology, pes planus, and a right shoulder complaint.  There are also the Veteran's assertions of continuing problems.  In this regard, VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Moreover, the Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability may be associated with service is low.  Id. at 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). 

In specific regard to the claim for service connection for bilateral pes planus, the Veteran's September 1985 enlistment examination report shows that he had mild pes planus.  Accordingly, an opinion should be obtained that addresses the question of whether this disability was aggravated in service.  38 U.S.C.A. §§ 1110; 5103A(d).

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC should ask the Veteran to identify any relevant private, Army or VA treatment records regarding his claimed disabilities that have not already been obtained.  If the AMC/RO cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AMC/RO must then:  (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The claimant must then be given an opportunity to respond.

2.  Thereafter, the Veteran must be afforded appropriate VA examinations in order to determine the nature and etiology of his claimed low back disability, glaucoma, degenerative joint disease of the right and left knees, bilateral pes planus, bilateral hearing loss and right shoulder disability.  Following completion of the examinations, the examiner/s is/are to provide a detailed review of the Veteran's pertinent medical history to specifically include relevant service treatment records.  The examiner/s should then opine as to whether it is at least as likely as not (greater than 50% degree of probability) that the claimed disabilities are related to service.  Regarding the claim for service connection for bilateral pes planus, the examiner should opine as to whether this disability has been aggravated by service.  By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression.

A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder.  The claims folder, and access to Virtual VA as needed, must be made available to and reviewed by the examiner prior to completion of the examination. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed if pertinent records are therein located, and specify the dates encompassed by the Virtual VA records.

3.  The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim.  The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim.  38 C.F.R. §§ 3.158, 3.655.  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address.  It should also be indicated whether any notice sent was returned as undeliverable.

4.  Thereafter, the RO or the AMC must readjudicate the issues on appeal in light of all pertinent evidence and legal authority.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue the appellant and his representative a Supplemental Statement of the Case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate consideration.

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

This claim 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. 2012).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs