Citation Nr: 1337637 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-31 060A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) to include as secondary to the service-connected acquired psychiatric disorder. 2. Entitlement to a compensable disability rating for the service-connected psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the RO. In July 2013, the Board remanded the case to schedule the Veteran for a hearing; however, he subsequently clarified in August 2013 that he did not wish to have a hearing. There are relevant documents uploaded on the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. There are no relevant documents in the Veterans Benefits Management System. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The service-connected acquired psychiatric condition is shown to be productive of a disability picture that more closely approximates that of occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks during periods of significant stress. 2. The currently demonstrated GERD is shown as likely as not to be due to the gastrointestinal manifestation exhibited by the Veteran during his period of active. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 10 percent rating, but no higher for the service-connected acquired psychiatric disability have been met. 38 U.S.C.A. § § 1155, 5107 (West 2002); 38 C.F.R. § § 3.159, 4.3, 4.7, 4.126, 4.130 including Diagnostic Codes 9424, 9434 (2013). 2. By extending the benefit of the doubt to the Veteran, his disability manifested by GERD is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). A March 2011 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The March 2011 notice letter provided and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the Vasquez notice (Vazquez-Flores v. Peake, 22 Vet. App. 91 (2008)), the RO provided such notice in the March 2011 VCAA notice letter, further explaining how VA determines a disability rating and examples of evidence and factors that VA considers in assigning a disability rating. Under these circumstances, the Board finds that VA has satisfied its duty to notify under VCAA. With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. The Veteran underwent a VA psychiatric examination in May 2011 to obtain medical evidence as to the current severity of his service-connected disability. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. With respect to the claimed GERD, to the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required at this time. Rating Criteria and Analysis 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed, the disability has not significantly changed and a uniform evaluation for the entire appeal period is warranted. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The service-connected conversion disorder is rated under 38 C.F.R. § 4.130, DC 9424. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130. The Rating Schedule provides that a 10 percent rating is warranted for psychiatric disorders with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Id. A 30 percent rating is warranted for psychiatric disorders with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, mild memory loss, such as forgetting names, directions, recent events. Id. The Global Assessment of Functioning (GAF) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas." Id. at 118. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 ; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Veteran is currently service connected for a conversion disorder rated at a noncompensable level ( effective on April 30, 1955). An October 2009 private treatment note recorded a diagnosis of a chronic depressive disorder for which the Veteran was undergoing medication management. The Veteran underwent a VA examination in May 2011 when the examiner found that the current psychiatric symptoms exhibited (e.g. depression) were related to bereavement due to the death of his daughter three years earlier. The Veteran also was noted to have a good psychosocial adjustment with no psychosocial impairment. He reported having friends and acquaintances and enjoying an active life. He was assigned a GAF score of 67 based upon his symptoms of bereavement. No impairment in social function was reported. As the Veteran was not employed, the examiner did not find it possible to determine his occupational functioning. It was noted that, if the Veteran were to attempt to return to work, he might be expected to experience mild occupational impairment due to symptoms of bereavement. The VA examiner did not believe that the Veteran had symptoms that were even transient or mild and decreased work efficiency and ability to perform occupational tasks only during period of significant stress. A 10 percent rating contemplates mild or transient symptoms which may affect occupational and social functioning. This rating would be consistent with the GAF score of 67 assigned by the VA examiner. Significantly, the Veteran is shown to have been placed on medication for chronic depression as noted by the October 2009 treatment note. To the extent that the overall record shows that the Veteran is experiencing chronic depression, the Board finds that this disabling manifestation cannot be dissociated from the service-connected psychiatric disability picture for rating purposes. Moreover, on this record, the service-connected psychiatric disability requiring medication is shown to more nearly resemble that of mild overall impairment. Hence, on this record, a 10 percent rating is for application. However, the Veteran does not exhibit any symptomatology that would warrant a rating higher than 10 percent under the applicable criteria. Extraschedular Considerations Generally, rating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. 38 C.F.R. §§ 4.20 , 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); Fisher v. Principi, 4 Vet. App. 57 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria under the Schedule reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. When service-connected disability affects employment in ways not contemplated by the rating schedule, § 3.321(b)(1) is applicable. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996). The Board finds that the disability picture is not so unusual or exceptional as to render the application of the rating criteria inadequate in this case. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are contemplated by the disability rating assigned herein for his psychiatric disorder. The criteria for the rating assigned herein for the Veteran's psychiatric disorder more than reasonably describe the Veteran's disability level and symptomatology Therefore, the schedular rating is adequate and no referral is required. VAOGCPREC 06-96 (1996), 61 Fed. Reg. 66749 (1996); 38 C.F.R. § 4.130. Principles of Service Connection and Analysis Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions in 38 C.F.R. § 3.307). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). The Veteran asserts that he should be service connected for GERD because he has experienced a continuity of symptoms since service. The service treatment records show complaints of lower abdominal pain, particularly intermittent pain in the lower right quadrant. Gastrointestinal series conducted in 1954 revealed a normal esophagus and stomach. Upon separation examination in April 1955, the Veteran's abdomen and viscera were noted to be normal, and no diseases or injuries affecting the gastrointestinal system were noted. After filing his original complaint in May 1955 for service connection for stomach trouble, the Veteran was afforded a VA examination in March 1956. His complaints involved similar symptomatology as noted in service, to include recurring abdomen aches located mainly in the right lower quadrant, and gaseousness. The examination revealed tenderness in the lower right abdominal area, but no masses were noted, and ultimately no diseases were found. A psychiatric study was recommended due to the lack of a showing of pathology. The studies were normal, showing no GI disease to accompany the complaints of lower abdominal pain and gas. The March 1956 VA examination report indicated that a psychiatric examination noted a diagnosis of conversion reaction, chronic, mild, was noted. An April 2004 private treatment record indicates that the Veteran had chronic GERD and was being treated with rabeprazole. A May 2011 VA mental health examination noted a medical opinion that the Veteran's "nervous stomach" in service had continued and was now diagnosed as GERD. The Veteran was afforded a VA examination in June 2011 and reported having had GERD symptomatology since service. The examiner noted a diagnosis of GERD, but did not render a medical opinion. In May 2012, an endoscopy was performed and the primary finding was Barrett's esophagus. Another VA examination was performed in May 2012 and noted that GERD was manifested by reflux symptomatology. The VA examiner opined that the symptoms related to stomach issues in service were not those associated with his present GERD. She added that there was no evidence supporting an upper GI diagnosis including GERD during service. In November 2012, the Veteran submitted a medical opinion from Dr. D.H. who had not treated the Veteran, but reviewed some of the Veteran's medical records. Ultimately, considering the link between mental health conditions and GERD based on existing medical literature, the physician opined that it was at least just as likely as not that the Veteran's GERD found its origin within his conversion reaction disorder. Based on a careful review of the entire record, the Board finds the evidence to be in relative equipoise in showing as likely as not that the current GERD had its clinical onset during the Veteran's period of active service. A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). The Veteran in this case is competent to assert that the gastrointestinal manifestations in service are the same as those currently attributable to the currently demonstrated GERD. His assertions are found to be credible and generally consistent with the findings in service and thereafter. The Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence (i.e., where the evidence supports the claim or is in relative equipoise, the appellant prevails). 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER An increased evaluation of 10 percent, but no higher for the service-connected acquired psychiatric disability is granted, subject to the regulations controlling the payment of VA compensation. Service connection for GERD is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs