Citation Nr: 1338799 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-10 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for esophageal reflux. 2. Entitlement to service connection for arthritis of the left hand, to include as secondary to service-connected scars of the left hand. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to May 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in pertinent part, granted entitlement to service connection for esophageal reflux with an initial noncompensable evaluation assigned effective December 14, 2011 and denied service connection for arthritis of the left hand. In an April 2012 rating decision the RO granted a 10 percent disability rating for esophageal reflux effective December 14, 2011. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. Additional evidence in the form of VA treatment records was associated with the Veteran's claims file in May 2013. The Veteran waived AOJ consideration of the evidence in June 2012 correspondence to the Board. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran experiences persistently recurrent epigastric distress with constant pyrosis, regurgitation at least twice a day, and shoulder pain, productive of considerable impairment of health. 2. The Veteran's left hand condition, diagnosed as arthritis, is not causally or etiologically related to service, to include any injury or event therein, and did not manifest to a compensable degree within one year of his discharge from service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 30 percent, but no higher, for esophageal reflux have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code 7346 (2013). 2. The criteria for service connection for arthritis of the left hand, to include as secondary to service-connected scars of the left hand, have not been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Esophageal Reflux Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Veteran's esophageal reflux has been rated by analogy to hiatal hernia under Diagnostic Code 7346. When an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20 (2013). The Board finds Diagnostic Code 7346 is the most appropriate under which to evaluate the Veteran's condition. Hiatal hernia is rated based on symptoms due to dysphagia, pyrosis, and regurgitation. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2013). The rating criteria state that a 60 percent disability rating 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. A 30 percent disability rating 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. A 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent evaluation, though of less severity. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2013). The Veteran was afforded a VA examination in February 2012. He reported infrequent episodes of epigastric distress, pyrosis, and reflux. In March 2012 he testified at a hearing before the RO. He reported his esophageal reflux had been getting worse since he was discharged from the hospital in January. He explained he is unable to eat much of the food at the shelter where he is living. He said he throws up at least twice a day. He expressed a belief that he had become more susceptible to illness due to his body not having the nutrients needed to fight off illnesses contracted from others at the shelter. In April 2012 the Veteran sought treatment at the VA for worsening heartburn, some nausea, and vomiting. He reported losing 12 pounds over the past several months due to not being able to eat food from the shelter. His medication was changed. A letter from a shelter employee stated that the Veteran eats one light meal a day due to vomiting and soreness and needs to eat healthier foods than the shelter is able to provide. The letter states that the Veteran is kept up by heartburn at night. The Veteran underwent an endoscopy at the VA in May 2012 that found proximal duodenitis, antral erythema, and esophageal white plaques. At his May 2013 Board hearing the Veteran testified his condition has worsened since his February 2012 VA examination. Specifically, he said he throws up at least twice a day. He reported he has constant heartburn. He said that some nights he has to sit in a chair to sleep. He stated his weight has stayed the same, but he eats a bland diet. He also testified that he has back pain that is made worse by throwing up, as well as pain in his chest and left shoulder. The Board finds that the Veteran's condition more closely approximates the criteria for a 30 percent disability rating. Although the Veteran has not reported any dysphagia, he has reported throwing up at least twice a day and constant pyrosis. His VA treatment records show multiple medication changes over the past two years including Omeprazole, Protonix, and Prilosec, in an attempt to control his symptoms. The evidence further supports that the Veteran experienced weight loss in 2012 likely due to an unavailability of appropriate food for his condition. He further has testified his heartburn affects his sleep. He also has pain in his chest and left shoulder. Overall, giving the Veteran the benefit of the doubt, the Board finds the Veteran experiences persistently recurrent epigastric distress with symptoms productive of considerable impairment of health as contemplated by a 30 percent disability rating. However, the Board finds the Veteran is not entitled to the next higher disability rating, 60 percent, as his symptoms are not productive of severe impairment of health. Specifically, he has only experienced limited weight loss and has no hematemesis or melena with moderate anemia. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service connected esophageal reflux that would render the schedular criteria inadequate. The Veteran's symptoms, including recurrent epigastric distress with constant pyrosis and regurgitation, are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's esophageal reflux. In addition, the Board finds the record does not reflect that the Veteran's esophageal reflux markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). Although the Veteran is currently not working, he testified it was a result of an unrelated injury. The manifestations of the Veteran's disability are considered by the schedular rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Left Hand Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain chronic diseases, including arthritis, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran testified at his May 2013 Board hearing that he has constant pain between the middle and ring fingers on his left hand in the same location where he was bitten in service. He stated that after the injury in service his hand swelled up and he received stitches and antibiotics. He reported the joints in the two fingers ache and he gets injections every two to three months. The Veteran's service treatment reflect that in October 1980 he hit another man in the mouth and sustained a teeth puncture wound between the third and fourth metatarsals of his left hand in the web space. No problems with his left hand or fingers were noted on discharge. In February 2012 the Veteran was afforded a VA examination. The Veteran complained of stiffness, pain, and loss of function in his left hand. Imaging showed a mild degenerative change in the distal interphalangeal joint of the Veteran's left fifth finger. The examiner opined that the arthritis is not the result of the Veteran's service. The examiner explained that the arthritis is not at the same location as bite injury in service. He stated that the Veteran's extreme limitations on examination cannot be explained medically from the trauma he incurred in service. The examiner further stated that based on the Veteran's complaints at the examination he would have expected more significant documentation of injury in service, at discharge, and through the last three decades. He also noted that when not directly viewed the Veteran was able to use his left hand functionally. In March 2012 the Veteran sought treatment at the VA for bilateral trigger fingers. He related that the problem started after using crutches and a wheelchair due to a recent quadriceps tendon repair. The examining doctor opined that the Veteran likely had arthritis in the metacarpophalangeal joints but that the time interval between the infection and his current condition makes it unlikely that the infection is the cause. He prescribed injections. In November 2012 the Veteran again requested injections for locking and stiffness of his middle and ring fingers bilaterally. The doctor found recurrent trigger fingers and proximal interphalangeal joint stiffness. He had additional injections in April 2013. The Veteran has been diagnosed with arthritis in his left hand, however, the Board finds the evidence does not support that the condition is due to his in-service injury or that the arthritis manifest itself within one year of the Veteran's discharge from service. Both the Veteran's VA treating physician and the VA examiner opined that the Veteran's arthritis was not caused by his in-service bite injury. They noted the several decades between the injury and the Veteran's recent complaints of pain in the area. The VA examiner further noted that the arthritis shown on x-ray was not at the same location as the bite injury. Specifically, the arthritis was found in the Veteran's fifth finger while the in-service injury occurred between his third and fourth fingers. The Veteran has also been treated for trigger finger, however this condition is bilateral and was reported first in 2012 after the use of crutches and a wheelchair. Thus, to the extent that the condition is separate from his diagnosed arthritis, the evidence does not support that it is related to his in-service injury given the much later onset and its bilateral nature. Although the Veteran has stated that he believes his current left hand condition is related to service, the Board finds he is not competent as a lay person to offer such an opinion. While he is competent to state what symptoms he feels, such as pain and stiffness, the etiology of arthritis is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Finally, the arthritis in the Veteran's left hand was first shown on x-ray in 2012, decades after the Veteran left service. Although he indicated in his Board hearing testimony that he previously experienced stiffness in his fingers when not regularly using them, the evidence does not show that arthritis was shown in service or manifest to a compensable degree within one year of his discharge from service. 38 C.F.R. §§ 3.303(b); 3.307. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for arthritis of the left hand, to include as secondary to service-connected scars of the left hand. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. Notice letters were sent to the Veteran in January and February 2012, prior to the initial adjudication of the claims on appeal. The letters informed the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that those duties were met at the Veteran's May 2013 Board hearing. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded VA medical examinations with regard to his left hand condition and esophageal reflux in February 2012. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to determine the etiology of and rate the Veteran's disabilities. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER An initial rating of 30 percent, but no higher, is granted for esophageal reflux, subject to the laws and regulations controlling the disbursement of monetary benefits. Service connection for arthritis of the left hand, to include as secondary to service-connected scars of the left hand, is denied. ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs