Citation Nr: 1611145 Decision Date: 03/18/16 Archive Date: 03/23/16 DOCKET NO. 09-12 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for a heart disability, claimed as supraventricular tachycardia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2000 to November 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction has been transferred to the RO in St. Petersburg, Florida. The appeal was remanded in March 2013 to afford the Veteran a Board hearing. A hearing was scheduled in May 2014. The Veteran failed to appear at the hearing and has not provided good cause for her absence. Therefore, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d)(e). In September 2015, the Board remanded the appeal to afford the Veteran with VA examinations to determine the nature and etiology of the claimed heart disability and the severity of her GERD. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. FINDINGS OF FACT 1. GERD was manifested by the need for medication, but not by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. 2. The Veteran does not have a current heart disability. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for GERD have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2015). 2. The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.103, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claims. The claim for a compensable evaluation for GERD arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-7 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). With regard to the Veteran's claim for service connection, the RO provided pre-adjudication VCAA notice by a letter dated in May 2008. The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. In September 2015, the Board remanded the appeal to afford the Veteran with VA examinations to determine the nature and etiology of the claimed heart disability and the severity of her GERD. The Veteran failed to report to her scheduled VA examinations on October 2015. The Agency of Original Jurisdiction (AOJ) sent the Veteran a letter inquiring as to whether she would like her VA examinations rescheduled. To date, she and her representative have not responded to the letter. The duty to assist is not a one-way-street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds the AOJ substantially complied with the remand directives. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims are thus ready to be considered on the merits. II. GERD 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 (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed, the disability has not significantly changed and will result in a uniform rating for the entire appeal period. If two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In an August 2008 rating decision, the AOJ granted service connection for GERD and assigned a zero percent disability evaluation under Diagnostic Code 7346. 38 C.F.R. § 4.114. Diagnostic Code 7346 provides ratings for hiatal hernia. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The AOJ granted the Veteran's claim of service connection for GERD based upon notations in the STRs for GERD and a July 2008 VA treatment note which indicated little breakthrough GERD. The VA treatment notes indicated that the Veteran took Nexium at various times. There was no pain, or black or bloody stools. In a July 2013 email, the Veteran stated that she was going to have gastric bypass surgery in October. Subsequently, in a February 2014 statement, the Veteran wrote that she was going to have surgery for her GERD condition later that month. The Veteran was scheduled for a VA examination in October 2015 to determine the severity of her GERD. However, the Veteran failed to report to the examination. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that failure to report for such examinations scheduled in conjunction with original claims, the claims will be decided based on the evidence of record. The Board had considered the Veteran's lay statements regarding her evaluation for GERD. However, they do not provide enough specificity to determine whether her GERD meets the criteria for a higher evaluation. Currently, there is no probative evidence that the Veteran's GERD should be assigned a compensable evaluation. In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim for a compensable evaluation for GERD. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). III. Heart Disability The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiomegaly, cardiomyopathy, and coronary heart disease, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2015). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). During service, in March 2005, the Veteran underwent a Holter monitor. The study showed palpitations and supraventricular tachycardia. However, there were no signs of ectopy. In August 2005, the Veteran was evaluated by the Physical Evaluation Board. The report concluded that the Veteran was physically unfit for service due to her low back pain and bilateral carpal tunnel syndrome. The report is silent regarding a heart disability. The October 2005 medical assessment given at separation documented palpitations. The Veteran's post-service July 2008 VA treatment record documented caffeine-induced palpitations. Private treatment records dated in July 2003 showed that the Veteran denied rheumatic fever, foot swelling, chest pain, murmurs, or pacemaker placement. The Veteran's medical history did not include any reports of a heart disability. The Board had considered the Veteran's lay statements regarding her alleged heart disability. However, they do not provide enough specificity to determine whether the Veteran has a current heart disability. The Veteran was scheduled for a VA examination in October 2015 to determine the nature and etiology of his heart disability. However, the Veteran failed to report to the examination. The provisions of 38 C.F.R. § 3.655 address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that failure to report for such examinations scheduled in conjunction with original claims, the claims will be decided based on the evidence of record. Currently, there is no probative evidence that the Veteran has a current heart disability. The evidence establishes that the Veteran has caffeine-induced palpations, which are a symptom and not a diagnosis. In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a heart disability. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefit sought on appeal is accordingly denied. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. ORDER A compensable evaluation for GERD is denied. Service connection for a heart disability is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs