Citation Nr: 1341015 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-19 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 50 percent for recurrent achalasia with cardiospasms. 2. Entitlement to a higher initial rating for esophageal reflux disease ("GERD"), currently rated as 10 percent disabling. 3. Entitlement to an effective date prior to April 30, 2009, for the establishment of a 50 percent disability evaluation for recurrent achalasia. 4. Entitlement to an effective date prior to December 7, 2009, for the grant of service connection for GERD. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 and March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of February and April 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that in relevant part denied the above claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. In his appeal to the Board of Veterans Appeals, Form 9, dated in July 2012, the Veteran raised the issue of clear and unmistakable error by the RO in "1985." This issue is not properly before the Board and is therefore referred to the RO for clarification and appropriate consideration. FINDINGS OF FACT 1. During the appeal period, the Veteran's GERD was not manifested by material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health during the appeal period. 2. During the appeal period, the Veteran's achalasia was not manifested by marked impairment of general health. 3. An informal claim for an increased rating for achalasia was received on April 30, 2009. 4. The Veteran's claim for service connection for GERD was received on December 7, 2009. 5. The competent and probative medical evidence of record does not show that the Veteran's service-connected achalasia or GERD are so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for achalasia with cardiospasms are not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 38 C.F.R. §§ 4.7, 4.20, 4.114, Diagnostic Code 7203 (2013). 2. The criteria for a rating in excess of 10 percent for GERD are not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 38 C.F.R. §§ 4.7, 4.20, 4.114, Diagnostic Code 7346 (2013). 3. The criteria for establishing entitlement to an effective date prior to April 30, 2009, for the establishment of a 50 percent disability evaluation for achalasia have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). 4. The criteria for establishing entitlement to an effective date prior to December 7, 2009, for the grant of service connection for GERD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for entitlement to an increased rating for recurrent achalasia and GERD, and entitlement to an earlier effective date for recurrent achalasia and GERD. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A. Duty to Notify When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Id. To satisfy the first notice element for an increased-compensation claim, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010). Two letters dated January 2010 fully satisfied the duty to notify provisions as to all elements prior to initial adjudication of the Veteran's increased rating claims in February and April 2010. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). B. Duty to Assist The Board also concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in January 2009, March 2010, and January 2013. The Veteran has not reported receiving any recent treatment specifically for the conditions at issue (other than at VA treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the most recent VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating fully contemplates the Veteran's disabilities. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. The January 2009, March 2010, and January 2013 VA examination reports are thorough and supported by VA outpatient treatment records. The examinations in this case are an adequate basis on which to adjudicate the claim. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Factual Background In January 2008, the Veteran was treated at a VA Medical Center ("VAMC"). He weighed 208.5 pounds. He stated he experienced shoulder pain, which was improved with medication. In an October 2009 VA examination, the Veteran reported that he has epigastric pain, weight loss, vomiting, and coughing at night. The Veteran reported also dysphagia for both solids and liquids. He endorsed epigastric pain two to three times per week, which involved a piercing pain that radiated back. During these episodes, he stated his saliva gets thick. He stated he must stop what he is doing during the episodes. The Veteran stated that he dry heaved several hours after eating food, but that he did not regurgitate food. He stated the over the past year he missed several days of work due to his condition. He reported that he tried different modalities to help the pain without success. On examination, the Veteran was noted has having good health and was well-nourished. The Veteran reported weight loss. On examination, the Veteran's abdomen was normal with the exception of a horizontal scar. There were no signs of anemia. The examiner diagnosed the Veteran with recurrent intractable achalasia. The examiner opined that the recurrent intractable achalasia was most likely causing cardiospasms, and that the achalasia was worsening and affecting the Veteran's lifestyle. Also in October 2009, the Veteran's wife submitted a statement reporting that the Veteran had persistently experienced health problems for the last 15 years. She stated the Veteran had trouble eating, as the food would become stuck in his esophagus. She noted the Veteran typically ate blended or pureed foods, and the even liquids were sometimes difficult for him to swallow. She also stated that he has frequent and debilitating episodes of esophageal pain, which last several hours and are severely painful. In a March 2010 VA examination, the Veteran was diagnosed with dysphagia with solid food sticking in his distal esophagus. The Veteran reported epigastric pain two to three times per week, which was relieved by vomiting. The Veteran stated the vomit rarely included blood. The Veteran's weight at the time of the examination was 211 pounds. He reported no recent weight loss and no signs of anemia. In a January 2013 VA examination, the Veteran reported persistently recurrent epigastric distress, dysphagia, recurrent nausea and vomiting, but no hematemesis or melena. The Veteran did not report vomiting food, but rather mucoid vomitus. The Veteran was not anemic. He stated that his symptoms became worse when he ate hot or cold food, and that foods had to be either liquids or finely chopped in order for him to swallow. He further reported that his esophageal condition required two visits to the hospital within the last year due to an inability to swallow food. The Veteran stated his esophageal condition interfered with his ability to drive, remain at his work station, eat and drink, and sleep. The examiner found the Veteran continued to have esophageal obstructive symptoms due to the lack of peristalsis in the esophagus, and still had reflux of esophageal content into the throat. The examiner also noted that the Veteran had dysphagia with solid food sticking and hanging up in the distal esophagus. The Veteran reported pyrosis and epigastric pain. The Veteran reported having multiple esophageal dilations in an attempt to improve the emptying of the esophagus without success. III. Increased Rating A. Achalasia The Veteran contends that he is entitled to a rating in excess of 50 percent for his service connected achalasia with cardiospasms. For the reasons that follow, the Board concludes that an increased rating for achalasia is not warranted. 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 & Supp. 2013); 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). The Veteran was initially granted service connection and assigned a 30 percent disability rating for achalasia, effective March 15, 1982 in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.114, Diagnostic Code (DC) 7203 (2013). The Veteran was later assigned a rating for 50 percent for achalasia effective April 30, 2009. Under DC 7203, moderate stricture of the esophagus is entitled to a 30 percent rating. Severe stricture of the esophagus, which permits liquids only, is entitled to a 50 percent rating. A rating of 80 percent is assigned when the stricture of the esophagus allows liquids only, and is accompanied by a marked impairment of general health. The current evaluation of 50 percent, which is based on symptoms of esophageal stricture that allows passage of liquids only, fully contemplates the Veteran's current level of disability. The Veteran reported dysphagia for solids and liquids in his October 2009 VA examination. The same month, the Veteran's wife submitted a statement in which she described the Veteran's difficulty swallowing foods that were not blended or pureed, and occasional difficulty swallowing liquids. Presently, however, the Veteran's symptoms do not show a marked impairment of general health as described by the 80 percent evaluation. The October 2009 examiner recorded the Veteran's health as being good, and noted that he was well-nourished. Further, the Veteran denied hematemesis or melena, and was not anemic. Though the Veteran experiences moderate esophageal cardiospasms, the examiner attributed this to the Veteran's achalasia. VA and private treatment records do not otherwise reflect considerable impairment in health due to a gastrointestinal disability. VA treatment records do not otherwise reflect considerable impairment in health due to a gastrointestinal disability. For these reasons, the Board finds that the weight of the evidence does not establish considerable impairment of health due to the service-connected GERD, and for these reasons, a higher 80 percent rating is not warranted under Diagnostic Code 7346. See 38 C.F.R. § 4.114. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 50 percent for recurrent achalasia must be denied. For the sake of brevity, the matter of possible entitlement to an extraschedular rating will be addressed below in regards to all increased rating issues on appeal. B. GERD The Veteran contends that he is entitled to a rating in excess of 10 percent for his service connected GERD. For the reasons that follow, the Board concludes that an increased rating for GERD is not warranted. The Veteran was initially granted service connection and assigned a 10 percent disability rating for GERD, effective December 7, 2009, in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.114 , Diagnostic Code (DC) 7399-7346 (2013). When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. See 38 C.F.R. § 4.27 (2013). As the Veteran's GERD is not assigned a specific number, code 7399 is applied to allow for rating the disability with other disorders of the digestive system. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2013). In this case, Diagnostic Code 7399 refers to digestive disorders in general, while the more specific Diagnostic Code 7346 refers to hiatal hernias. Pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346, a 10 percent evaluation is warranted when there is evidence of persistently recurrent epigastric distress manifested by two or more of the following symptoms (adding the qualifier that they be symptoms of "less severity"): dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal arm or shoulder pain which is productive of considerable impairment of health. A 30 percent evaluation is assigned based on evidence of all of these symptoms. 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. The evidence of record does not indicate an increased rating is warranted for the Veteran's condition. The Veteran's symptoms are not demonstrative of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. In October 2009 the Veteran reported weight loss, but shortly thereafter, in March 2010, weighed 211 pounds and reported no recent weight loss. The Veteran had, in fact, gained weight since his January 2008 VAMC treatment, where he weighted 208.5 pounds. Though the Veteran did report pain and vomiting, he stated the vomit did not consist of solids, but was typically dry heaving without regurgitation, or consisting of mucus. Further, there was no hematemesis or melena. This was confirmed by the lack of indication of anemia. Additionally, the October 2009 examination described the Veteran as being in good health. He has reported trouble with eating and drinking due to difficulty swallowing liquids or solids, and interference with driving, work and sleep due to episodes of esophageal pain that occur two to three times per week. However, these episodes were attributed to the Veteran's achalasia disability by the October 2009 VA examiner. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 10 percent for GERD must be denied. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The Board, however, concludes that the criteria for a rating in excess of 50 percent for achalasia and 10 percent for GERD have at no time been met. Accordingly, staged ratings are inapplicable. See id. The record reflects that entitlement to TDIU was denied in the February 2010 rating decision that granted a 50 percent evaluation for achalasia. The Veteran was mailed notification of the denial the same month, and he did not appeal. As such, the Board finds that the issue of TDIU is not presently before the Board on appeal. C. Extraschedular Consideration The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The schedular evaluation for the Veteran's achalasia disability and GERD fully contemplates the Veteran's current disabilities. The Veteran merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations reasonably describe the service-connected disability; thus, the schedular evaluations are adequate to rate the Veteran's disability. With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that the disabilities at issue has caused him to miss work or has resulted in a significant number of hospitalizations. The Board finds, therefore, that the service-connected achalasia and GERD do not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. II. Earlier Effective Date A. Achalasia The Veteran contends that he is entitled to an effective date prior to April 30, 2009 for the 50 percent evaluation for service-connected achalasia. However, as outlined below, the preponderance of the evidence of record demonstrates that an earlier effective date is not warranted for either claim. As noted above, the Veteran was initially awarded service connection for achalasia in March 1983. A 30 percent disability evaluation was assigned at this time under DC 7203, effective March 15, 1982. In May 2009, VA received a claim from the Veteran seeking a higher disability evaluation for his achalasia disability. In February 2010, the Veteran was awarded a 50 percent disability evaluation for achalasia, effective April 30, 2009. In January 2011, VA received a notice of disagreement from the Veteran, contesting the February 2010 award of a 50 percent rating for achalasia, and asking that an earlier effective date be assigned. The Board finds that the preponderance of the evidence of record demonstrates that an effective date for establishing entitlement to a rating in excess of 30 percent, prior to April 30, 2009, is not warranted. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Veteran. App. 511 (1997). Generally then, to determine an appropriate effective date for an increased rating, the Board must determine when a claim for an increased rating was received and, if possible, when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2013). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 510(a) (West 2002); 38 C.F.R. § 3.151(a) (2013). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2013). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering "informal claims" based on medical records, the "date of claim" will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment and the date of receipt for evidence from a private physician, layman, state, or other institution. See 38 C.F.R. §§ 3.155(c); 3.157(b) (2013). VA treatment records reflecting treatment in the year prior to receipt of the informal claim for an increased rating for achalasia do not demonstrate a worsening of the Veteran's condition. The claim was substantiated by an October 2009 VA examination, and by a statement submitted by the Veteran's wife the same month. As such, the evidence does not support an award of disability compensation prior to the date of receipt of claim on April 30, 2009. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an effective date prior to April 30, 2009 for a rating of 50 percent for achalasia must be denied. B. GERD The Veteran contends that he is entitled to an effective date prior to December 7, 2009, for the grant of service connection for GERD. The preponderance of the evidence of record demonstrates that an effective date prior to December 7, 2009, for the grant of service connection for GERD is not warranted. The Veteran did not file a claim seeking service connection for hypertension until December 7, 2009. As already noted, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Board notes that the Veteran filed a claim in May 2009 for a rating in excess of 30 percent of achalasia. However, the Veteran did not submit any statement to suggest he was also seeking service connection for GERD at that time. The Board has an obligation to review pleadings in as broad a manner as is reasonable, but no obligation exists to create, sua sponte, a claim for an appellant who has otherwise not adequately articulated one on his own. A thorough review of the remainder of the claims file reveals no other evidence or statement that could reasonably be construed as an informal claim for GERD prior to December 7, 2009. The law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("38 U.S.C.A. § 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to...be paid under the laws administered by the Secretary.") The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995). As such, an earlier effective date for the grant of service connection for GERD cannot be awarded. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an effective date prior to December 7, 2009 for service connection for GERD, must be denied. ORDER Entitlement to a rating in excess of 50 percent for recurrent achalasia with cardiospasms is denied. Entitlement to a higher initial rating for GERD, currently rated as 10 percent disabling, is denied. An effective date prior to April 30, 2009, for the establishment of a 50 percent disability evaluation for achalasia, is denied. The claim of entitlement to an effective date prior to December 7, 2009, for the grant of service connection for GERD is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs