Citation Nr: 1336010 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-40 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an increased initial evaluation for service-connected gastro esophageal reflux disease (GERD). 3. Entitlement to a rating in excess of 10 percent for service connected hypertension. 4. Entitlement to a rating in excess of 10 percent for service connected lumbar degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Regional Office (RO) that, in pertinent part, granted service connection for GERD with an evaluation of 0 percent and declined to grant service connection for obstructive sleep apnea. In February 2010, the Veteran testified during a personal hearing at the RO. A transcript of that hearing is associated with the claims file. The Veteran testified before the undersigned at a June 2013 hearing at the Board. A hearing transcript has been associated with the claims A review of the Virtual VA paperless claims processing system revealed copies of the Veteran's VA outpatient treatment records dated March 2009 to August 2012. FINDINGS OF FACT 1. The weight of the evidence is in favor of finding that the Veteran's currently diagnosed sleep disorder had its onset during service. 2. During the initial rating period, the Veteran's GERD has caused the following symptoms - intermittent regurgitation, severe chest pains, pyrosis, reflux, dysphagia, and pain going up his arms, that more nearly approximates persistently recurrent symptoms productive of considerable impairment of health. 3. In June 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for entitlement to a rating in excess of 10 percent for service connected hypertension. 4. In June 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for entitlement to a rating in excess of 10 percent for service connected lumbar degenerative disc disease. CONCLUSIONS OF LAW 1. A general sleep disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). 2. The criteria are met for an initial evaluation of 30 percent, but no higher, for GERD. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.114, Diagnostic Code 7346 (2013). 3. The criteria for withdrawal of the appeal of entitlement to a rating in excess of 10 percent for service-connected hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 4. The criteria for withdrawal of the appeal of entitlement to a rating in excess of 10 percent for service connected lumbar degenerative disc disease have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 369 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). But "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, the Board finds that VA's duty to notify has been satisfied. The Board also finds that VA's duty to assist the Veteran has been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) and VA outpatient treatment records have been obtained and associated with the claims file. The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). VA provided the Veteran with examinations in June 2007, July 2009, and June 2012. The Board concludes that these examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disability, including its effects on his occupation. There is no indication in the record that additional evidence is available which is relevant to the currently appealed claim. See Pelegrini, 18 Vet. App. at 121-22. As the Board is granting the Veteran's claim for service connection for a general sleep disorder, no discussion of VA's duty to notify and assist within the context of that issue is necessary. The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the undersigned identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection obstructive sleep apnea and an increased evaluation for GERD, and the Veteran volunteered his subjective symptoms and employment history during the period under consideration. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. Legal Criteria Service connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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 during service. 38 C.F.R. § 3.303(d) . Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1(2012). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that where, as here, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence 'used to decide whether an original rating on appeal was erroneous.' Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran's GERD is rated as 0 percent disabling under the diagnostic code for hiatal hernia. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 10 percent evaluation is warranted for a condition with two or more of the symptoms for the 30 percent evaluation of less severity. Id. A 30 percent evaluation is warranted for 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 60 percent evaluation is warranted for 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. Analysis Obstructive sleep apnea The Veteran contends that his currently diagnosed obstructive sleep apnea was incurred during military service. In particular, at the 2013 Board hearing, the 2010 RO hearing, and written statements the Veteran has consistently stated that, in service, he began having nose, sinus, throat, and chest problems. His wife testified at the 2013 Board hearing that he was also snoring and sometimes not breathing during the night. She also noted that his legs twitched during sleep. The Veteran has stated that he went to his personal physician while in the military and was referred for a sleep study, conducted in 2006. After the study, the Veteran stated that he was diagnosed with sleep apnea and administered a continuous positive airway pressure (CPAP) machine for treatment. The Veteran has stated that the CPAP machine improves his symptoms and gives him a good night's sleep. The Veteran also stated that he has continued to have his CPAP machine calibrated by medical professionals, initially by the military and then by the VA Medical Center post-service. A review of the Veteran's STRs shows that the Veteran was referred to a pulmonary sleep clinic in February 2006. The Veteran was reported as complaining of excessive snoring and daytime sleepiness. The provisional diagnosis was obstructive sleep apnea. The Veteran was administered a sleep study in June 2006. The results showed a baseline study demonstrating primary snoring with no evidence of significant sleep disordered breathing. The Veteran was diagnosed with a sleep disorder. In July 2006, the Veteran indicated that he had tried his wife's CPAP machine and that he was able to have a better night's sleep. The Veteran's doctor decided, despite no diagnosis of obstructive sleep apnea, to try the CPAP machine for a few months. The Veteran's STRs shows that he continued to use the CPAP and have it calibrated. Although subsequent STR's show obstructive sleep apnea in the Veteran's "problem list" and other treatment providers refer to the Veteran as having obstructive sleep apnea, it appears that this is more of an administrative chronology of all of the Veteran's complaints and prior diagnoses, both provisional and confirmed, and not an actual diagnosis provided on the basis of any medical examination, to include sleep study. There is no indication that the Veteran was subsequently diagnosed with obstructive sleep apnea prior to service discharge. A review of the Veteran's VA outpatient treatment records shows that he was continually treated for a sleep disorder, diagnosed as obstructive sleep apnea, with a CPAP machine. Again, it appears that the VA Medical Center's reference to the Veteran's diagnosis of obstructive sleep apnea is more of an administrative chronology of the Veteran's prior assessments from his STRs as well as the Veteran's own self-reported history of obstructive sleep apnea. There is no indication that the Veteran was given a diagnosis of obstructive sleep apnea based upon any objective medical findings, to include a sleep study. The Veteran was administered a VA examination in June 2007. At that examination, the examiner noted that the Veteran's STRs showed a diagnosis of obstructive sleep apnea and that the Veteran still carried a current diagnosis. No sleep study or independent medical testing was employed. The Veteran was administered an additional VA examination in July 2009. At that examination, the examiner noted that there was no diagnosis of obstructive sleep apnea. In support, the examiner provided that the June 2006 sleep study did not show a finding of obstructive sleep apnea. No sleep study or independent medical testing was employed. The Board finds that, while the Veteran's medical records reflect a diagnosis of obstructive sleep apnea, the objective medical evidence of record fails to show that this disability has been clinically diagnosed or confirmed by a sleep study. Both the Veteran's STRs and VA outpatient treatment records noted obstructive sleep apnea in the Veteran's history and conditions for which he has received treatment. However, the Veteran's STRs show that the Veteran was found to not have obstructive sleep apnea via a June 2006 sleep study. Further, the Veteran appears to have been the one to initiate a request for and use the CPAP machine. Because he reported that it alleviated his sleep disorder symptoms, the Veteran's treatment providers continued to support his use of the CPAP machine, even without a diagnosis of obstructive sleep apnea. This treatment continued post-service, again, without a clinical diagnosis of obstructive sleep apnea. Also, it appears that the notations of obstructive sleep apnea are more of an administrative chronology of all of the Veteran's complaints and prior diagnoses, both provisional and confirmed, and not an actual diagnosis provided on the basis of any medical examination, to include sleep study. While the Veteran does not have a credible in-service or current diagnosis of obstructive sleep apnea, the Board notes that the evidence of record supports a finding of a current disability because the Veteran's STRs, VA medical records, and competent and credible statements reveal a current diagnosis of a chronic general sleep disorder. See Shedden, 381 F.3d at 1167; see also Caluza, 7 Vet. App. at 506; Hickson, 12 Vet. App. at 253; 38 C.F.R. § 3.303. The Board also notes that the evidence supports a finding of an in-service incurrence because the Veteran's STRs show that he was diagnosed with and treated for a sleep disorder with a CPAP on multiple occasions. Id. Thus, the issue turns upon a finding whether there is a nexus between his current disability and service. Id. With respect to crucial Hickson element (3), nexus or relationship, there is no medical opinion evidence of record linking the Veteran's current sleep disorder to his active duty military service, or ruling out any such connection. Sleep disorder is not a chronic disease as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Diseases that would be considered "chronic" in a medical sense, but which are not listed in § 3.309(a), may qualify for service connection under the three-element test under § 3.303(a). Id. at 1338. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology. Id. at 1338-39. The Board finds that the Veteran's sleep disorder is in fact chronic. The Veteran's STRs show that he was experiencing symptoms of a sleep disorder, to include snoring, twitching, and daytime somnolence, as early as February 2006. Treatment for this condition with a CPAP machine continued until the Veteran's discharge from service and has, thus continued until present. Further, both the Veteran and his wife have testified regarding the presence of objective symptoms of snoring, twitching, and daytime somnolence, for which they are both competent and credible to report. The Board finds that the Veteran and his wife are competent to describe readily observable features or symptoms of illness such as snoring, twitching, and daytime somnolence. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Moreover, given the type of disorder (a disorder that manifests during sleep), the Veteran's description of how he became aware of his symptoms through his and his wife's observations is plausible. Therefore, the Board finds the Veteran's report of having experienced symptoms of snoring, twitching, and daytime somnolence in service is credible. The Veteran's VA outpatient treatment records show that when he first established treatment post-service, in October 2008, the Veteran's STRs reflected treatment for a sleep disorder and the Veteran self-reported that he had obstructive sleep apnea and that he had used a CPAP for one and a half years at home. From that time until present, the VA Medical Center has continued to treat the Veteran's sleep disorder, not clinically diagnosed as obstructive sleep apnea, with a CPAP machine. As such, the medical evidence of record further supports a finding of a chronic condition and does not reveal the existence of any intervening causes that may be responsible for the current sleep disorder. Lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and as to the specific issue in this case, whether the Veteran's current sleep disorder is a continuing disorder that had its onset during service, the Board finds that this nexus issue is within the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, as there is competent and credible lay and medical evidence of a current chronic sleep disorder, competent and credible lay and medical evidence of in-service incurrence of a sleep disorder, and competent and credible lay evidence that the current chronic sleep disorder is a continuing disorder of a sleep disorder that had its onset in service, service connection for a sleep disorder is warranted. GERD The Veteran asserts that the symptoms of his GERD are worse than reflected by his initial evaluation of 0 percent. At his June 2013 Board hearing, the Veteran testified that began first experiencing symptoms of waking in the middle of the night with regurgitation, severe chest pains, and pain going up his arms. These symptoms were also reiterated in his July 2008 notice of disagreement. He also testified at the 2013 Board hearing that he still had these symptoms after service to present and that he had reported them to his VA doctor. However, he stated that the VA doctor did not put notes regarding these symptoms into his records. He also stated that he has had to be placed on several different medications to control his symptoms since service. At his February 2010 RO hearing, the Veteran's spouse testified that the Veteran initially complained of a sore throat that was later revealed to be caused by acid reflux in the Veteran's esophagus. A review of the Veteran's STRs shows that he was treated on numerous occasions for symptoms of his GERD and given medication to control it. In March 2004, the Veteran was treated for complaints of heartburn. In July 2004, the Veteran's GERD was noted as well controlled. From April 2005 to August 2005, the Veteran was treated for a sore throat and dysphagia related to GERD. A review of the Veteran's VA outpatient treatment records shows that he continued to receive treatment and medication for his GERD post-service. When he first sought treatment in October 2008, the Veteran's GERD was noted as well controlled with medication. In March 2009, the Veteran's GERD was still noted as well controlled with medication. In March 2010, it was noted that the Veteran was taking medication, but still having symptoms. No specific symptoms were noted and the treatment provider recommended a change of medication. The Veteran was provided with a VA examination in June 2007. At this examination, the examiner noted that the Veteran complained of symptoms of epigastric pain and reflux of stomach contents. These symptoms were noted as occurring on a constant basis. The Veteran was treated with medication. No functional impairment was noted. An associated upper GI series found that the Veteran had moderately frequent reflux without hiatal hernia or inflammatory/erosive changes in the esophagus. The Veteran was provided with an additional VA examination in July 2009. At this examination, the examiner noted that the Veteran's symptoms began with a sore throat and that a 2003 study showed moderate reflux. The Veteran was initially prescribed medication and continues to take it to treat symptoms. The Veteran stated that if he forgot to take his medication, he had moderate to severe symptoms. The examiner noted that the Veteran's condition has improved since onset. The examiner found no significant effects on occupation or activities of daily living. The Veteran was provided with a final VA examination in June 2012. At this examination, the examiner noted that the Veteran was diagnosed with GERD and had to take continuous medication. The Veteran reported that if he forgot to take his medication, he had moderate to severe symptoms of burning and acid indigestion. Reported symptoms included pyrosis and reflux. The examiner found that the Veteran's GERD did not impact his ability to work. Overall, the examiner noted that the Veteran's symptoms are well controlled with occasional problems. Based on the above, the Board finds that the Veteran's GERD meets the criteria for a 30 percent evaluation throughout the entire appeal period. The Veteran's STRs and current VA outpatient treatment records, as well as the VA examinations, show that the Veteran has had complaints of regurgitation, severe chest pains, pyrosis, reflux, dysphagia, and pain going up his arms on intermittent occasions. The Veteran's statements regarding symptoms of regurgitation, severe chest pains, and pain going up his arms are found to be competent and credible. The Board finds that he is competent to testify as to the severity of the symptomatology associated with his GERD, as pain and regurgitation are personal experiences subject to observation. See Jandreau, 492 F.3d at 1372. Additionally, his statements are presumed credible, as his complaints of pain and regurgitation have remained consistent in both his lay testimony and the testimony of his spouse. Symptoms such as regurgitation, pyrosis, substernal pain, dysphagia, and arm pain are specifically contemplated in the criteria for a 30 percent evaluation. Furthermore, the June 2007 VA examination noted that the Veteran claimed his symptoms were constant. The predominate findings of the Veteran's treatment records have shown that his condition is well controlled but he must take continuous medication. The associated 2007 upper GI series found that the Veteran's reflux was moderately frequent. The July 2009 VA examination noted that a 2003 study similarly showed moderate reflux. Thus, the Board finds that the Veteran's symptoms more nearly approximate persistently recurrent symptoms productive of considerable impairment of health. In so finding, however, there is no indication that the Veteran's symptoms are productive of severe impairment of health. This is supported by the Veteran's VA examinations in June 2007, July 2009, and June 2012, as it was found that the GERD did not produce significant functional impairment. The Veteran does not present with material weight loss and hematemesis or melena with moderate anemia. As such, the lay and medical evidence of record shows that the Veteran is entitled to a 30 percent evaluation, but no higher, throughout the entire appeals period. The Board has considered whether staged ratings are warranted, but finds that they are not as the evidence, including the Veteran's credible and probative statements, does not show that there are distinct periods of time where evaluations higher than 30 percent for GERD are warranted. The evidence of record does not warrant ratings in excess of those assigned for the Veteran's residuals of a GERD at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013). Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In this regard, the schedular evaluation in this case is not inadequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected GERD, but the evidence reflects that those manifestations, namely the presence of material weight and hematemesis or melena with moderate anemia or any indication that this condition is productive of severe impairment of health, are not present. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's GERD. The Veteran's complaints including intermittent regurgitation, severe chest pains, pyrosis, reflux, dysphagia, and pain going up his arms are not exceptional or unusual features of this disease. Therefore, the Veteran's current rating appropriately contemplates the scope of his complaints. Accordingly, referral is not required. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his GERD renders him unemployable and the other evidence of record does not otherwise suggest that this is the case. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record. Withdrawal of Appeals The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2013). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the issues of entitlement to a rating in excess of 10 percent for service-connected hypertension and entitlement to a rating in excess of 10 percent for service connected lumbar degenerative disc disease currently on appeal. See June 2013 transcript. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a sleep disorder is granted. Entitlement to an initial 30 percent evaluation for service-connected GERD is granted, subject to the laws and regulations governing the payment of monetary benefits. The issue of entitlement to a rating in excess of 10 percent for service-connected hypertension is dismissed. The issue of entitlement to a rating in excess of 10 percent for service-connected lumbar degenerative disc disease is dismissed. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs