Citation Nr: 1604920 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 10-44 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable rating for gastrointestinal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to April 2007. This claim was previously remanded by the Board in November 2011 and February 2014 for additional development. It is now ready for adjudication. FINDINGS OF FACT 1. Prior to July 16, 2010, GERD was well controlled with daily medication. 2. Since July 16, 2010, GERD has been manifested by subjective complaints of pain and esophageal distress; objective findings are essentially normal. CONCLUSIONS OF LAW 1. Prior to July 16, 2010, the criteria for a compensable rating for GERD were not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.114, Diagnostic Code (DC) 7346 (2015). 2. Effective July 16, 2010, the criteria for a 10 percent rating, but no more, for GERD was met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.114, DC 7346 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Historically, the RO granted service connection for GERD in November 2008 and assigned an effective date of May 1, 2007, under DC 7346. The Veteran now seeks a higher evaluation. Under DC 7346, a 10 percent rating is warranted where GERD manifests with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for GERD that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest schedular rating of 60 percent 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. In August 2008, the Veteran underwent a VA examination, at which he reported that his GERD symptoms were under control with daily medication. He denied a history of nausea, vomiting, dysphagia, esophageal distress, heartburn, pyrosis, regurgitation, hematemesis, melena, and esophageal dilation. There were no signs of significant weight loss or malnutrition. In a January 2009 VA treatment record, he denied abdominal pain or cramping, nausea, diarrhea, vomiting, or constipation. It was noted that he had a significant weight gain of about 25 pounds in the past year. In a July 2010 VA examination, the Veteran reported infrequent nausea and infrequent esophageal distress accompanied by pain when he did not take daily medication. He denied a history of vomiting, dysphagia, heartburn, pyrosis, regurgitation, hematemesis, melena, and esophageal dilation. He reported that he did well when taking medication twice a day. There were no signs of significant weight loss or malnutrition or of anemia. The examiner noted that the Veteran retired in 2007 and his GERD had no significant effects on his usual occupation. GERD had moderate effects on his usual daily activities, such as recreation, traveling, and feeding. On his October 2010 substantive appeal, the Veteran reported that he suffered from constant pain in his chest area that traveled down his right arm. He reported medication worked only temporarily. He also asserted he felt vomit in his mouth all the time. In a March 2011 VA treatment record, he denied chest pain, dysphagia, nausea, vomiting, heartburn, abdominal pains, constipation, and diarrhea. In an August 2013 VA treatment record, he denied weight loss. Most recently, the Veteran underwent a VA examination in April 2014, at which he reported sharp pain in his sternum area across his chest toward his heart mostly during the weekend, lasting 30-60 minutes since 1997. He reported that he rested and then the pain subsided. He denied dysphagia, pyrosis, regurgitation, vomiting, weight loss, and hematemesis. The examiner noted that he did not have esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or any acquired diverticulum of the esophagus. He reported taking Nexium daily, working full time, and attending classes. The examiner concluded by noting that the Veteran stated that he had pain across the sternum and cardiac area when he experienced the discomfort (even though this symptom is not a specific one for GERD, especially when it is limited to the weekend). He was not able to produce the pain on palpation on examination. The examiner noted that, otherwise, the Veteran had no other symptoms listed above. The examiner also noted that Nexium had been prescribed to take twice per day but the Veteran was only taking it once per day. At the outset, in November 2015, the Veteran complained that the April 2014 examiner failed to speak to the symptomatic history of his GERD, as instructed by the Board. However, upon review of the April 2014 VA examination report, there is no indication that the examiner failed to discuss the relevant symptomatology associated with GERD. All pertinent symptomology was recorded in the report and discussed by the examiner. Moreover, the pertinent history related to GERD was noted in both the August 2008 and July 2010 VA examination reports, as well as in the VA treatment records. Therefore, despite the November 2015 assertions, the medical evidence of record is sufficient to evaluate the claim. Prior to July 16, 2010, the evidence does not demonstrate that the Veteran's GERD manifested with any of the symptoms listed under a 30 percent or a 60 percent evaluation. The evidence shows that his symptoms were well controlled with daily medication and he had no physical complaints. Therefore, a compensable rating is not warranted prior to July 16, 2010. The Board finds that the Veteran's GERD met the criteria of a 10 percent rating effective July 16, 2010. Specifically, the July 16, 2010, VA examination report documented his reports of esophageal distress accompanied by pain. Therefore, he manifested with two symptoms for the 30 percent rating, a 10 percent rating is warranted, effective July 16, 2010. With respect to granting a rating in excess of 10 percent, effective July 16, 2010, the evidence of record from this time period, to specifically include the July 2010 and the April 2014 VA examination reports, does not reflect that GERD manifests with dysphagia, pyrosis, regurgitation, vomiting, material weight loss, hematemesis, melena, or anemia. While he reported a vomit feeling in his mouth, the evidence does not show regurgitation or vomiting, both of which he denied in at both the July 2010 and the April 2014 VA examinations. Additionally, the evidence does not show that the Veteran's symptoms are productive of considerable or severe impairment of health. While the July 2010 VA examination report reflects that GERD had moderate effects on his usual daily activities, such as recreation, traveling, and feeding, the April 2014 VA examination report reflects that he works full-time and attended classes. Based on his occupational and educational commitments, it does not appear that he is considerably or severely impaired due to his GERD. As such, an evaluation in excess of 10 percent, effective July 16, 2010, is not warranted. The Board has reviewed the remaining diagnostic codes relating to the digestive system. However, the Veteran's disability picture is most appropriately evaluated under DC 7346 based on his reported symptoms. As such, an increased rating cannot be assigned under DCs 7200-7354. In summary, the preponderance of the evidence supports a 10 percent rating, but no higher, effective July 16, 2010. The preponderance of the evidence is against a compensable rating prior to July 16, 2010, and for a rating in excess of 10 percent since July 16, 2010. The benefit of the doubt rule of 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. The Board has next considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as pain and esophageal distress, are "like or similar to" those explicitly listed in the rating criteria, which considers symptoms such as epigastric distress with dysphagia, pyrosis, regurgitation, arm or shoulder pain, weight loss, hematemesis, melena, anemia, and over-all health status. Mauerhan, 16 Vet. App. at 443. Moreover, the Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his gastrointestinal disability is more severe than is reflected by the assigned rating. As was explained in the decision above, the criteria for an even higher rating were considered, but the now-assigned 10 percent rating since July 2010 is most appropriate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the service-connected disabilities (sleep apnea, hearing loss, and a skin disability), and referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular rating is not warranted. Next, the Board has considered whether the issue of entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to his service-connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence of record indicates that he works full time and takes classes. While the record reflects symptoms of GERD, there is no indication that he is rendered unable to work by his service-connected disabilities. Therefore, as the issue of TDIU is not reasonably raised by the record, it is not part of the rating appeal. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, the Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the duty to assist, available service treatment records have been obtained, as have VA treatment records. He was also provided with examinations in August 2008, July 2010, and April 2014, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. In sum, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An initial compensable rating for GERD prior to July 16, 2010, is denied. A 10 percent rating, but no more, for GERD, effective July 16, 2010, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs