Citation Nr: 1339116 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-42 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned at a personal hearing via video conference. A transcript of this hearing has been associated with the claims folder. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT Throughout the appellate period, there has been no showing of moderate anemia and no overall demonstration of a severe impairment of health due to GERD. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for GERD are not met. 38 U.S.C.A. §§ 1155, 5107 (2013); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.112, 4.113, 4.114, Diagnostic Code 7346 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). 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 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's March 2010 letter to the Veteran was sent prior to the issuance of the initial rating decision and satisfied the duty to notify provisions relating to the claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability and of the different types of evidence available to substantiate his claim for a higher rating. Moreover, the letter notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the March 2010 and April 2011 examiners took into account the Veteran's statements, completed comprehensive physical examinations, and provided detailed examination reports regarding the Veteran's disability and symptoms. The April 2011 examiner also reviewed the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2013) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties 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. Bryant, 23 Vet. App. at 488. The Board finds that these duties were adequately fulfilled at the August 2011 hearing, with the undersigned sufficiently addressing the issue and suggesting the submission of additional evidence. At that hearing the Veteran and his authorized representative demonstrated adequate knowledge of the criteria and evidence necessary for an increased rating for GERD. Thus no prejudice could have reasonably resulted from any deficiency in the undersigned's fulfillment of the requirements of Bryant v. Shinseki. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In this case, GERD has been rated by analogy to a hiatal hernia under Diagnostic Code 7346, based on anatomical location, system affected, and symptomatology. 38 C.F.R. § 4.21. A 30 percent evaluation is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, warrant a 60 percent evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7346. For purposes of evaluating digestive conditions, "material" weight loss is not defined. However, "substantial weight loss" is present when there is a loss of greater than 20 percent of the baseline weight and "minor weight loss" is found with weight loss of 10 to 20 percent of the baseline weight; the losses must be sustained for three months or longer. 38 C.F.R. § 4.112. In various statements and during his hearing before the Decision Review Officer, the Veteran indicated that he has had increasing pain, persistent cough as a result of aspirating vomit, bloody stool, frequent regurgitation, and substernal pain. He states that when he aspirates vomit, it tastes bloody and that he vomits almost daily. His symptoms worsen at night. It takes hours for him to fall asleep and he is usually wakened by violent coughs and the aspiration of vomit. He has averred that this aspiration was the cause of two episodes of pneumonia in 2008 that resulted in missing two weeks of work. He stated that the condition and resulting daytime fatigue degrades his performance at work. Symptoms have also limited his ability to seek other employment, limited his ability to travel and engage in certain work related activities at his current job, and interfered with his daily routine. December 2009 VA treatment records show that despite taking Nexium for his GERD, his symptoms were worsening. He stated that he tried diet modification and an upright sleeping position to alleviate symptoms. He reported an increase in reflux, including nighttime vomiting that was acidic and not bloody, when supine. He had new onset of dysphagia. He also noted occasional infrequent episodes of dark stools. No recent weight gain or loss was observed. Symptoms included heartburn and regurgitation. In February 2010, he reported vomiting when supine, dysphagia, and occasional melena. In March 2010, the Veteran reported two episodes of aspiration pneumonia, reflux that awakens him and he swallows it, and occasional bloody bowel movements. He did not indicate recent weight loss. During the March 2010 VA examination, the Veteran reported that Nexium was not helping much and that he would likely need surgery. He reported nausea with meals; nightly to weekly vomiting; daily esophageal distress accompanied by moderate substernal pain; daily episodes of heartburn; and daily episodes of regurgitation with bile-stained fluid. The examiner indicated that there was no history of hematemesis or melena. The Veteran said he tasted blood with regurgitation, and had difficulty sleeping at night causing daytime fatigue, dyspepsia, abdominal pain and coughing. The examiner said the Veteran's overall health was good and that he showed no signs of anemia. No weight change was noted and the examiner did not observe significant weight loss or malnutrition. The examiner opined that GERD did not have significant effects on employment. GERD had mild effects on chores and recreation and moderate effects on exercise and sports. A July 2010 treatment record from NMC shows report of reflux, retrosternal pain, regurgitation that wakes him from sleep at night, some melena, chronic cough, chronic throat pain, and feelings of pressure. The physician observed normal esophageal function and the hiatal hernia. The Veteran's weight was 104 kg (approximately 229 pounds), down 4 kg, or almost 9 pounds, from 108 kg (approximately 238 pounds). The Veteran had a laparoscopic hiatal hernia repair at NMC in July 2010. In a February 2011 statement, the Veteran said that since the surgery, he had experienced some improvement but still had the urge to vomit, and continued to vomit with less frequency. He had pain and pressure in his stomach, sternum, and abdomen. His constant belching and clearing of his throat did not improve after surgery. New symptoms included frequent, unyielding diarrhea that occurred as often as 6 times per day, persistent gas, bloating, and cramps. His symptoms interfered with his sleep routine, his ability to complete tasks, and precluded intimate relationships. He avers that these symptoms are of the severity to cause severe impairment of health. During the April 2011 VA examination, the Veteran said he had missed three weeks of work following his surgery in 2010 and missed up to an additional week for pre- and post-operative appointments. He reported the following symptoms: substernal chest pain, heartburn, pyrosis, and daily regurgitation. Regurgitation symptoms were described as severe with gagging and vomiting. Episodes of aspiration included gagging and wheezing and usually occurred when lying down and while experiencing regurgitation. It occurred on average every two weeks. He said the regurgitation with vomiting occurred on average every two weeks. Also noted was mild intermittent dysphagia to solid foods, persistent and recurrent belching, and bloody stools on a weekly basis. The Veteran did not report significant anemia but noted that he follows a restricted diet, avoiding foods that aggravate his GERD. He described a weight loss of 20 to 30 pounds over the past 12 to 18 months. His weight was 201 pounds. He also noted frequent loose stools since his 2010 surgery. The Veteran described limitations with his occupation due to his GERD and symptoms of reflux, pyrosis, heartburn, and the frequent and untimely episodes of belching. GERD interferred with attending meetings and travelling due to the episodes of loose stools. The examiner stated that the loose stools are not a direct result of the GERD. The medical history section of the report indicates that the Veteran had nausea and vomiting about every two weeks when in a reclining position, at least weekly episodes of dysphagia, daily heartburn or pyrosis, and episodes of esophageal disease accompanied by shoulder, substernal and arm pain about every two weeks. He also had multiple episodes of regurgitation each week. The examiner found no history of hematemesis or melena or history of esophageal dilation. The examiner did not observe signs of anemia and said the Veteran's overall general health was good. GERD had significant effects on employment, causing increased absenteeism, and frequent and untimely eructation. GERD had mild effects on exercise, sports, recreation, and feeding. Finally, the Board considered the Veteran's testimony provided before the undersigned in August 2011. During his hearing, the Veteran averred that his symptoms are the severity to warrant a 60 percent rating. The Veteran said he lost 37 pounds and that this loss should be considered material weight loss. He also noted that he takes a multivitamin and eats foods high in iron to help prevent anemia. He noted persistent reflux and regurgitation with blood, blood in his stool, difficulty swallowing, vomiting, aspiration, acid in the back of his throat, wheezing, and substernal pain. The Board has considered all of the evidence including the Veteran's statements, VA and private treatment records, and VA examination reports but finds that the Veteran's symptomatology does not meet the criteria for a 60 percent rating. As noted above, for a 60 percent rating, the Veteran's GERD must result in (1) pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or (2) other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Here, the Veteran has reported symptoms including belching, diarrhea, bloating, gas, cramps, vomiting, aspiration of vomit, dysphagia, heartburn, coughing, pain, weight loss, bloody regurgitation and/or vomiting, bloody stool. The Veteran is competent to report such symptoms as they can be observed by lay persons. See Barr, 21 Vet. App. at 308-09. Further, the treatment records show that he has consistently reported these symptoms during the course of the appeal; therefore, the Board finds that his statements are credible. However, regarding weight loss, the records do not state that the weight loss is due to GERD. The Veteran has indicated that he restricts his diet to control symptoms, thus, it is unclear whether the weight loss is due to improvement in diet or deterioration in health. The medical evidence does not show that the Veteran has been malnourished at any time during the pendency of the claim. Even if the Board assumes that the weight loss is due to GERD, the Veteran does not have moderate anemia. While the Veteran has indicated that he has anemia to a degree and that he takes preventative measures, such as eating leafy greens, to prevent full onset of anemia, he is not competent to diagnose anemia, which is one of the criteria necessary for the 60 percent rating. Anemia cannot be readily observed by laypersons as it is a condition of the blood and as such, anemia must be diagnosed by testing performed by persons with medical expertise. The Board has also considered whether the Veteran's symptoms as a whole result in severe impairment of health. The Board acknowledges that the Veteran's symptoms are frequent and subjectively perceived as severe but finds that the Veteran's overall general health has been characterized as "good" by the VA examiners. Moreover, none of the private or VA treatment records indicate that symptoms of GERD cause severe impairment of health. The Board also acknowledges the impact of GERD symptoms on the Veteran's employment, activities of daily living, and participation in social activities but finds that the impact of GERD symptoms on employment and his daily life does not support a finding of severe impairment of health. Here, the evidence shows that the Veteran is fully employed. At most he has some increased absenteeism with mild to moderate impact on exercise, sports, recreation, and feeding. While his symptoms may present at inconvenient times during work hours or social activities, the symptoms do not support a finding of severe impairment of health. At most, his symptoms support the current evaluation of 30 percent for considerable impairment of health. Based on the foregoing, the Board finds that the Veteran's disability picture more closely approximates the criteria for the currently assigned 30 percent rating for the entire pendency of the claim. 38 U.S.C.A. 5110 (West 2002); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). He does not have moderate anemia and his symptoms do not cause severe impairment of health. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against a rating in excess of the 30 percent, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is denied. Extraschedular Considerations Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2013). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App at 115. Therefore, 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. Id. This task is to be performed by the RO or the Board. Id. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of [C & P] for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). After reviewing the evidence of record, it is not shown that such an exceptional disability picture exists that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's GERD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Board has considered the Veteran's surgery for hiatal hernia repair and the impact of GERD on employment, to include time taken off for surgery; however, the Board finds that the 30 percent criteria under 38 C.F.R. § 4.114, Diagnostic Code7346, reasonably describe the Veteran's disability level, rated as considerable impairment of health. There is no evidence in the medical records of an exceptional or unusual clinical picture not contemplated in the diagnostic criteria for the currently assigned 30 percent rating. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Board has also considered the application of Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that a TDIU claim is part of every increased rating claim and is properly before the Board when such a claim is reasonably raised by the record. However, in the instant case, the Veteran has not indicated that he is unemployable due to his service-connected GERD. Therefore, the issue of TDIU need not be considered any further by the Board. ORDER Entitlement to a rating in excess of 30 percent for GERD is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs