Citation Nr: 1342297 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 08-21 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial increase rating evaluation for gastroesophageal reflux disease (GERD), in excess of 10 percent. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran's DD-214 shows active duty service from August 1986 to November 2005, with over three years of prior additional active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In a May 2008 Decision Review Officer (DRO) decision, the RO increased the Veteran's disability rating from 0 percent to 10 percent. As a rating higher than 10 percent is available, and inasmuch as a claimant is presumed to be seeking maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This case was previously remanded by the Board in December 2010 and June 2012. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that there are VA medical records dated January 2008 to June 2009. The remaining documents are either duplicative or irrelevant to the issue on appeal. FINDINGS OF FACT 1. Attempts by the RO and/or the Appeals Management Center (AMC) to locate the Veteran have been unsuccessful. These attempts are documented in the file in a formal finding of unavailability. 2. The Veteran has not provided any updated contact information to VA. As such, the RO and/or the AMC have not been able to schedule the Veteran for a VA examination to determine the current severity and manifestation of his GERD disorder. 3. Review of the claims file demonstrates that the Veteran's GERD disorder is shown to include symptoms of moderate gastritis, moderate LES laxity & Barrett's esophagus. CONCLUSIONS OF LAW 1. VA's duty to assist the Veteran in this case has been accomplished. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2013) 2. The criteria for a disability rating greater than 10 percent for GERD are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7399-7307 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice should be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VA's duty to notify has been satisfied through the notice letter sent to the Veteran in April 2006. The Veteran submitted additional documents to VA following this April 2006 notice letter. As such, the Board finds that it may infer that the Veteran received this letter. In addition, the duty to assist the Veteran has also now been satisfied in this case. A brief summary of the procedural history would be helpful in demonstrating this evolution. The Veteran first filed a claim for GERD in March 2006; he was residing in Massachusetts at that time. In November 2009, the Veteran notified VA of a change in address and provided the RO with his new address in Japan. The RO then sent correspondence to the Veteran regarding a scheduled hearing for October 2010 (in Massachusetts) to his new FPO address. The Veteran sent a follow up letter from his FPO address stating that he could not attend a hearing in Massachusetts as he had moved to Japan and again provided his new address in Japan to VA. This case previously came before the Board in December 2010. At that time, the Board remanded the Veteran's GERD claim for further development, to include contacting the Veteran for additional records and scheduling a VA examination. Review of the file shows that this request for additional records as well as notification of VA examinations were sent to the Veteran's prior Massachusetts address. The Board also notes that the VA examination was scheduled in Massachusetts, even though the Veteran was living in Japan. As such, in a June 2012 decision, the Board again remanded this case for further development after it found that it was likely that the Veteran never received notification of his scheduled VA examinations or of VA's request for additional treatment information. In this June 2012 remand, the Board directed the AMC/RO to confirm the Veteran's current address, request additional records from the Veteran, obtain updated records, schedule a VA examination, and send a supplemented statement of the case to the Veteran. In September 2012, the AMC associated a formal finding of unavailability with the Veteran's file, which described its efforts to locate the Veteran. The steps taken by the AMC are as follows: a copy of the Board's June decision was mailed to the Veteran's Massachusetts address, which was returned; the AMC attempted to call the Veteran twice in July to obtain a correct address, but the Veteran did not return those calls; in July 2012 the Board's decision was re-mailed using the Veteran's FPO address; the AMC then searched accuprint, CAPRI, and VAMC data bases for the Veteran's current address - all sources cited the same FPO address; several calls were then made to AMVETS to obtain updated contact information, however, AMVETS had the same contact information for the Veteran. As a result, the AMC reported that they were unable to schedule an examination or send the Veteran the decision letter. In December 2012, the AMC issued a supplemental statement of the case (SSOC) to the Veteran's FPO address which found that the Veteran's GERD claim would remain denied, as he had not reported for an examination. The SSOC also requested that the Veteran contact AMC immediately. In June 2013, AMVETS filed an informal hearing presentation (IHP) wherein it stated that the actions taken by AMC appeared to comply with the actions mandated by the Board. It also reported that it too had been unsuccessful in locating the Veteran. The Board finds that the AMC has substantially complied with the directives from the Board's June 2012 remand and has adequately attempted to provide the Veteran with adequate notice and assistance with his claim. Without a current address, VA cannot obtain any additional relevant records or schedule the Veteran for a VA examination; however, the Board finds that the AMC has reasonably attempted to obtain this information from the Veteran, as well as to notify the Veteran that further evidence and correspondence was necessary for his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Law and Regulations 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability (during the rating period) that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Veteran has alleged that the symptoms of his GERD disorder are more severe than his current disability rating reflects. As discussed in detail above, the Veteran has also not provided an updated address to VA and has not responded to VA's requests for additional medical records or in scheduling a new VA examination. For the reasons outlined above, the Board finds that the AMC has adequately attempted to obtain additional information from the Veteran. Indeed, the Board notes that the adjudication of this issue has been made significantly more difficult by the Veteran's failure to contact VA and assist in scheduling a new VA examination. The Board points out that, in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, while the requested examination and testing could possibly have yielded evidence favorable to the Veteran's claim, he has not fully cooperated in VA's efforts to obtain such evidence. Thus, the claim will be evaluated on the basis of the evidence of record. In this case, the Veteran reported experiencing daily pain as a result of his GERD in his October 2007 notice of disagreement. He also stated that he required daily prescription medication to relieve this pain, which sometimes limited his sleep to 4 to 6 hours per night. In May 2009 the Veteran submitted a statement wherein he reported suffering from sleep disturbance and erectile dysfunction as a result of his GERD. The Veteran's VA medical records demonstrate that the Veteran reported chronic GERD and abdominal pain, which was described as sharp and at times woke him from sleep at an appointment in August 2007. The Veteran reported that the pain lessened during the day and that he experienced no nausea or vomiting. His medication was changed and in October 2007 the Veteran reported improved results. An esophagogastroduodenoscopy was performed on November 2007 which found "moderate gastritis, moderate LES laxity, ?Barrett's extending 2cm above the GE junction." At appointments in 2008 and 2009 the Veteran's GERD and Barrett's esophagus were noted to be stable. The Veteran was previously afforded a VA examination in May 2006. However, the Board previously found that this examination was insufficient for rating purposes in its December 2010 remand. As noted in the December 2010 Board remand, GERD is not among the conditions listed in the Ratings Schedule. As such, the RO assigned a rating by analogy. See 38 C.F.R. § 4.20. The RO initially considered the Veteran's claim under Diagnostic Code (DC) 7308. DC 7308 is the code used to rate postgastrectomy syndrome; under which, a 20 percent rating is assigned for mild postgastrectomy syndrome - infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A 40 percent rating is assigned for moderate postgastrectomy syndrome - less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating is assigned for severe postgastrectomy syndrome - associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. The RO subsequently rated the Veteran under DC 7307 for gastritis, hypertrophic (identified by gastroscope) in its May 2008 DRO decision. Under that diagnostic code, a 10 percent rating is warranted for chronic gastritis with small nodular lesions, and symptoms. The DRO assigned this 10 percent rating as a result of his November 2007 esophagogastroduodenoscopy report which found "moderate gastritis, moderate LES laxity, ?Barrett's extending 2cm above the GE junction." Under DC 7307 a 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. And a 60 percent rating is assigned for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. The Board finds that a higher rating under DC 7307 is not for application in this cases as there is no evidence (in the November 2007 procedure or otherwise), which shows eroded or ulcerated areas and symptoms. The Board also finds that an increased rating under DC 7308 (postgastrectomy syndrome), which the RO previously used to evaluate this case, is also not for application in this case, as there is no evidence of record showing that the Veteran was experiencing circulatory symptoms or continuous postgastrectomy syndrome. Additionally, the criteria in DC 7303 (gastritis) better describes the Veteran's symptoms. Another potentially applicable rating criteria in this case is DC 7305, the diagnostic code used to rate a duodenal ulcer. Under this code, a mild duodenal ulcer with recurring symptoms once or twice yearly warrants a 10 percent rating; a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations warrants a 20 percent rating. A 40 percent rating will be assigned where there is evidence of a moderately severe duodenal ulcer -less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted where there is evidence of a severe duodenal ulcer; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. The Veteran's medical records do not show the presence of incapacitating episodes or severe episodes 2 to 3 times per year averaging 10 days. As such, an increase under DC 7305 is not warranted. Also potentially applicable is Diagnostic Code 7346 (hiatal hernia). A 10 percent disability rating is warranted with two or more of the symptoms for the 30 percent disability rating, though of less severity. 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 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. Here again, an increase in the Veteran's disability rating is not warranted as the Veteran's claims file does not demonstrate that his GERD, gastritis, or Barrett's esophagus impairs his health to a considerable degree or that he experienced any arm or shoulder pain. His records instead reflect that he is stable and improving on his medication. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report the symptoms he experienced as a result of his GERD disorder because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board finds that the Veteran has also provided credible testimony regarding his GERD disorder in this case. However, with regard to the Veteran's contentions that his pain and need for a medication regime entitle him to a higher rating, the Board finds that analysis of the applicable DCs reveal that VA law does not entitle the Veteran to a higher rating based upon the reported symptoms the Veteran has testified to. The Veteran has also claimed that his GERD interferes with his sleep. As above, while the Board finds that the Veteran is competent to testify regarding this symptom and that he has offered credible testimony in that regard, the Board also finds that this impaired sleep does not warrant an increased disability rating under VA law. Finally, the Veteran has claimed that he experiences erectile dysfunction (ED) as a result of his GERD. The Board finds that the Veteran is competent to offer testimony regarding his experience with ED. However, the Board notes that the Veteran's medical records make no mention of erectile dysfunction (ED) secondary to GERD. There is no evidence of record to assist the Board in making a determination on either the etiology of the Veteran's ED or the Veteran's credibility with regard to his contention. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Because of the complexities in diagnosing disabilities and in determining the etiology of ED, the Board finds that without further evidence of record regarding the etiology of the Veteran's ED, the Board cannot adequately address ED as a rating criteria for GERD. The Board also notes that a VA examination may have proven helpful to the Veteran's claim that his ED symptoms are secondary to his GERD, however, the Veteran's failure to notify VA of his new address or cooperate in scheduling a new VA examination have caused the Board to evaluate his claims based only upon the evidence of record. As such, the Board finds that there is currently insufficient evidence of record to use any potential ED disorder as rating criteria for the Veteran's GERD. Based upon guidance by Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate. In the present case, the Board finds the Veteran's symptoms have been consistent throughout the appeal period and in fact, were reportedly improving, thus, an increased evaluation for any portion of the appeal period is not warranted at any time. Extra-schedular Rating In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's GERD disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes pain, which wakes him from sleep at times. Moreover, as discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such impairment. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected GERD disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Thun v. Peake, 22 Vet. App. 111 (2008). Total Disability Rating Based On Individual Unemployability Lastly, the Board notes that the Veteran has not claimed that his GERD renders him unemployable. The record also does not show that his disability prevents him from obtaining or maintaining employment. Therefore, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability has not been reasonably raised by the Veteran or the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER An initial increase evaluation for GERD in excess of 10 percent is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs