Citation Nr: 1337346	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  08-39 196	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Casadei, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from September 2000 to December 2003.  The Veteran served in Southeast Asia from April 2003 to September 2003. 

This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  Due to the Veteran's place of residence, the Roanoke, Virginia, RO has assumed jurisdiction in this matter.  

In September 2011, the Veteran testified at a Board personal hearing before the undersigned Veterans Law Judge, seated in Washington, DC (Central Office hearing).  A transcript of the hearing is of record.  At the hearing in September 2011, the Veteran submitted additional evidence with a signed waiver of agency of original jurisdiction review.

The issue on appeal was previously remanded by the Board in March 2012 in order to provide the Veteran with another opportunity to attend a VA examination to assist in determining the current severity of the GERD disability.  The RO made reasonable efforts to comply with the Board's remand directive and the claim was readjudicated in a February 2013 supplemental statement of the case.  For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).

The other issues that were on appeal at the time of the March 2012 Board remand are no longer before the Board.  During the remand development, the issue of service connection for a disorder of both hands and arms, to include as due to a service-connected cervical disability and to include fibromyalgia, including as qualifying chronic disability, was granted in a February 2013 RO rating decision.  Also, in October 2012 and in accordance with Manlincon v. West, 12 Vet. App. 238 (1999), the RO issued a statement of the case for the appeal for higher initial rating in excess of 10 percent for a cervical disability.  As the Veteran did not subsequently enter a substantive appeal as to this issue, the issue is not on appeal before the Board.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302(b) (2013).  Accordingly, the only issue currently on appeal is entitlement to an increased rating in excess of 10 percent for GERD.  In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.


FINDING OF FACT

The Veteran failed, without good cause, to cooperate with the scheduling of a VA examination that was necessary to evaluate the increased rating claim for GERD.


CONCLUSION OF LAW

The claim for an increased rating in excess of 10 percent for GERD is denied based on the Veteran's failure to cooperate with the scheduling of a necessary VA examination.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.655(b) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

As explained in detail below, the Board has denied the claim for an increased rating in excess of 10 percent for GERD on the basis that the Veteran failed, without good cause, to cooperate with the scheduling of a VA examination necessary to decide the issue.  As such, the Board has determined that there is no legal entitlement to the claimed benefit as a matter of law.  See 38 C.F.R. § 3.655.  As the Board has denied the increased rating claim as a matter of law, the notice and assistance provisions of the VCAA are inapplicable because there is no reasonable possibility that any notice or assistance could aid in substantiating the claims.  See e.g., Mason v. Principi, 16 Vet. App. 129, 132 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).

Disability Rating Criteria

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013).

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

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, 58 (1994).  The Board acknowledges that 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 (2007).

VA's regulations provide that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.  38 C.F.R. § 3.655(a).  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(b).

Increased Rating for GERD

The service-connected GERD disability is currently rated as 10 percent disabling.  In January 2008, the Veteran filed a claim for increase for the service-connected GERD disability, essentially contending that the disability had worsened.  The Veteran further reported acid reflux, nausea, bloating, and cramping.  See September 2011 Board hearing transcript.

Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence does not demonstrate that the service-connected GERD disability has worsened in severity to warrant a higher disability rating.  In order to assist in determining the current level of severity for the GERD disability, the Veteran was initially scheduled for two VA examinations in 2008.  At the September 2011 Board personal hearing, the Veteran stated that she was unable to attend the first scheduled VA medical examination due to a work situation and that she could not attend the second scheduled VA medical examination as her child was sick with an ear infection at the time.  

Thereafter, and pursuant to March 2012 remand directive, the RO again attempted to schedule the Veteran for a VA examination to determine the severity of the GERD disability; however, the Veteran failed to respond to the VA Medical Center's request for confirmation of the VA examination appointment.  See November 2012 C&P examination request showing that Veteran did not RSVP).
Upon review of the record, to include the Virtual VA electronic claims file, the Board finds no indication, either by the Veteran or her representative, that an attempt has been made to reschedule or otherwise provide good cause for failure to confirm the VA examination appointment.  As stated above, VA regulations provide that, in a claim for increase, when entitlement cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be denied.  See 38 C.F.R. § 3.655(a) and (b).  

The Board finds that a VA examination is necessary to decide the claim for increase for the GERD disability.  The examination may have provided an indication of considerable impairment of health, if such were present.  At the examination, other symptoms would have been elicited from the Veteran, if present, that may have supported the criteria for a higher rating, such as reports of persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal arm or shoulder pain.  See 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346 (2013).  As the Veteran, without good cause, refused to cooperate with the scheduling of a VA examination, and as entitlement to a higher or compensable rating for the service-connected GERD disability cannot be established without a current VA examination, the claim is denied.  38 C.F.R. § 3.655.


ORDER

An increased rating in excess of 10 percent for GERD is denied. 



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs