Citation Nr: 1753397 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-24 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) (history of Barrett's esophagus). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1986. He died in June 2013. The appellant is the Veteran's widow. Historically, in VA Form 21-526 of October 24, 2007 the Veteran claimed service connection for acid reflux/Barrett's esophagus, which was denied in February 2009, of which he was notified by letter of February 5, 2009. His request for reconsideration of that claim was received on January 19, 2010, within one year of notice of that denial. A June 2010 rating decision granted service connection for coronary artery disease (CAD), status post (SP) myocardial infarction (MI), which was assigned an initial 100 percent rating and granted eligibility to Dependents' Educational Assistance, all effective October 24, 2007. That decision deferred adjudication of service connection for acid reflux, Barrett's esophagus. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which awarded service connection for GERD (with history of Barrett's esophagus) and assigned a noncompensable rating, effective October 24, 2007 (date of receipt of original claim, VA Form 21-526). The Veteran died in June 2013, prior to the resolution of his appeal. The appellant, the Veteran's surviving spouse, perfected his appeal for a higher initial rating for GERD. The appellant testified before the undersigned Veterans Law Judge at a hearing held in May 2015. A transcript is of record. The Board remanded this case in July 2015 at which time it was noted that in July 2013, the appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), Death Pension, and Accrued Benefits by a Surviving Spouse or Child. In the absence of a specific request to substitute, VA treats qualifying death claims (i.e., a VA Form 21-534) as requests to substitute. 38 C.F.R. § 3.1010(c)(2)); VA Fast Letter 10-30 (August 10, 2010) (amended April 3, 2013). The appellant is the Veteran's surviving spouse and has been awarded DIC benefits. A July 2016 rating decision granted service connection for metastatic esophageal cancer which was assigned an initial 100 percent disability evaluation under Diagnostic Code 7343 (malignant neoplasms of the digestive system) and granted special monthly compensation (SMC) by reason of being housebound (HB), all from July 27, 2011. The case has now been returned for further appellate consideration. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prior to July 27, 2011, the Veteran's GERD was productive of other symptom combinations productive of severe impairment of health. 2. Since July 27, 2011, the Veteran's symptoms of GERD were encompassed in a 100 percent rating assigned for esophageal cancer. CONCLUSION OF LAW The criteria for an initial rating of 60 percent for GERD from October 24, 2007 to July 26, 2011 are met. 38 U.S.C. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.20, 4.21, 4.114, Diagnostic Codes 7343 and 7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. VA's duty to notify was satisfied by letters in November 2007 and January 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). This case arises from a disagreement with the initial noncompensable disability evaluation assigned by a rating decision which granted service connection for GERD. So, the initial claim for service connection has been substantiated. Therefore, additional VCAA notice concerning a "downstream" issue such as the rating for that disorder is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the appellant has not alleged any prejudicial error in the content or timing of any notice. VA also fulfilled its duty to assist the claimant by obtaining all potentially relevant evidence, and therefore appellate review may proceed without prejudicing the appellant. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's available service treatment records (STRs), private medical records, and VA records. He has been afforded VA examinations as to his now service-connected GERD. The appellant testified in support of the claim at a May 2015 Board videoconference before the undersigned VLJ. See 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Following the 2015 Board remand, the appellant was provided with appropriate notice, additional private clinical records were obtained, and an addendum medical opinion was rendered in June 2016. And, all this was in compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). There is no allegation of any failure as to the duties to provide notice and assistance. In light of the foregoing, the Board concludes that there has been full VCAA compliance. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007); see also Stegall v. West, 11 Vet. App. 268 (1998). Rating Principles Disability ratings for service-connected disorders are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Although the regulations do not give past medical reports precedence over current findings, in considering the severity of a disability, it is essential to trace the medical history of the veteran and consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. §§ 4.1, 4.2, 4.41. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Powell v. West, 13 Vet. App. 31, 34 (1999). Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required. 38 C.F.R. §§ 4.7, 4.21. A higher rating will not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Because there is no specific Diagnostic Code for rating GERD, the service-connected GERD had been rated analogously by use of a "built-up" Diagnostic Code as a hiatal hernia under Diagnostic Code 7346. A disorder not listed in the rating schedule may be rated as if it were a closely related disease or injury, when (1) the functions affected, (1) the anatomical localization, and (3) symptoms are closely analogous by use of a "built- up" DC with the first 2 digits being from the part of the schedule identifying the disorder, followed by a hyphen, the last 2 digits being '99' to signify rating as an unlisted condition. Generally see 38 C.F.R. §§ 4.20, 4.27; see also Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992) and Archer v. Principi, 3 Vet. App. 433 (1992). "[T]he requirement that Board consider and discuss selection of the diagnostic code is heightened where the disability has been rated as an unlisted condition by analogy to another condition." Horowitz v. Brown, 5 Vet. App. 217, 224 (1993) (citing Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992)). All three factors must be addressed and not merely one factor, e.g., the analogousness of symptoms. Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992) (in which the Court suggested that a rating may be made on the analogousness of causes rather than symptoms). 38 C.F.R. § 4.20 allows for analogous ratings of an "unlisted" condition" under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptoms are closely analogous. However, "[c]onjectural analogies will be avoided" as are ratings for conditions of doubtful diagnosis or not fully supported by clinical or laboratory findings; and ratings are to be assigned for organic diseases and injuries to conditions of functional origin. "An analogous rating thus may be assigned only where the service-connected condition is 'unlisted'." Suttman v. Brown, 5 Vet. App. 127, 134 (1993). The strict application of criteria in an analogous DC is not generally appropriate because analogous ratings under 38 C.F.R. § 4.20 requires only "closely analogous"-and not identical-functional impairment, anatomic localization, and symptoms between an unlisted and a listed disability. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different DCs. See Esteban v. Brown, Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346 provides that a minimum 10 percent rating is warranted for a hiatal hernia when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The criteria for a 60 percent rating are 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 Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Legal Analysis Initially, the Board finds that the use of Diagnostic Code 7346, for rating the service-connected GERD is appropriate because the functions affected (digestion), anatomical localization (the upper gastrointestinal tract), and symptomatology (shown by comparing the Veteran's complaints with the analogous rating criteria) are closely analogous. Gastroesophageal reflux is the "reverse flow of material from stomach to esophagus." Cox v. Brown, 5 Vet. App. 95, 97 (1993). Gastroesophageal reflux is the most disabling manifestation of a hiatal hernia. 76 Fed.Reg. 39160, 39174 (July 5, 2011). Addressing the contentions on appeal, at the May 2015 videoconference the appellant testified that the Veteran's esophageal cancer contributed to his death. However, service connection for the cause of his death has already been established. She testified that she believed that over time the Veteran's service-connected GERD had led to Barrett's esophagus and, in turn, to his fatal esophageal cancer. In fact she stated that "[g]astroesophageal acid reflux developed into Barrett's esophagus and ultimately into metastatic esophageal cancer." Page 6. "I'm just saying acid reflux equals GERD, equals Barrett's esophagus, equals esophageal cancer." Page 7. The appellant further testified that it was her understanding that VA had determined that the Veteran's esophageal cancer was "a separate disability. I do have to agree, as it developed from an already noted illness." Page 6. In this regard, the Board notes that service connection has been established for esophageal cancer, by rating decision in July 2016, and assigned a 100 percent disability rating, effective July 27, 2011. The appellant also testified that as to symptoms listed at Diagnostic Code 7346 the Veteran had at least two or more specific symptoms associated with the epigastric distress, one was dysphasia, i.e., difficulty in swallowing. In fact, she testified that he "had a feeding tube inserted [by a physician] at Baptist Medical Center on the 29th of March 2013 at the request of his oncologist ... because he was having trouble swallowing." Page 6. Also, he had had pyrosis, i. e., heartburn, for years which was why he had been prescribed Nexium. Also, he had regurgitation, and at the Montgomery Cancer Center an oncologist tried numerous medicines to stop the regurgitation. It is one of the reasons he lost weight. Page 6. On October 27, 2010 a VA examiner addressed whether the Veteran's current Barrett's esophagus was related to his GERD that was diagnosed during service. In this regard, the Board notes that ""Barrett's esophagus involves 'peptic ulcer of the lower esophagus, often with stricture, due to the presence of columnar-lined epithelium in the esophagus (sometimes containing functional mucous cells, parietal cells, or chief cells) instead of the normal squamous cell epithelium. It is sometimes premalignant, followed by esophageal adenocarcinoma.' DORLAND'S at 1848." Trull v. Shinseki, No. 08-1892, slip op. (U.S. Vet. App. Jan 21, 2010) (nonprecedential memorandum decision). The 2010 VA examiner stated that an inservice Medical Evaluation Board had indicated the Veteran had symptoms compatible with reflux esophagitis and GERD. A March 2001 esophagoduodenoscopy (EGD) indicated a diagnosis of Barrett's esophagus. The Veteran had a long standing history of reflux which was well controlled, symptomatically, with Prilosec. It was noted that an evaluation at a general surgery clinic indicated that the Veteran had dysphagia for solid foods which had progressed over the last 4 months. He had had a show of blood after such episodes. He had been on medication for the last 5 months. The assessment had been dysphagia secondary to either GERD with stricture or a neoplasm. The Veteran reported that in the 1980s he had had increasing problems with reflux and had been prescribed Mylanta. He also reported that an inservice EGD had demonstrated Barrett's esophagus. Currently, he denied any reflux, indigestion, dysphagia, and pyrosis. He also denied having abdominal pain, hematemesis and melena as well as nausea and vomiting. He currently took Nexium. He denied a history of any neoplasm, although he had a history of Barrett's esophagus. He denied having any weight loos over the last 12 months. He denied any anemia and any black or bloody stools. He reported having a bowel movement on a daily basis and denied any functional deficits or symptoms. On physical examination the Veteran's abdomen was soft and nontender. An upper gastrointestinal (GI) X-ray series revealed gastroesophageal reflux and coarse mucosa of the distal esophagus from reflux esophagitis. The diagnosis was GERD and a history of Barrett's esophagus. It was opined that it was at least as likely as not that the Veteran's GERD and Barrett's esophagus were caused by or a result of his GERD during active service. There were medical records which demonstrated that he was seen and treated for GERD during active duty. Private treatment reports show that in May 2011 the Veteran had a biopsy and was diagnosed with esophageal cancer. There were two small subcarinal nodes noted on an endoscopy at that time. He underwent treatment which included chemoradiotherapy. A stomach biopsy on March 20, 2012 showed that he had mild chronic gastritis, fundic gland polyp, and an ulcerated and inflamed glandular mucosa with severe dysplasia that was consistent with at least adenocarcinoma in situ. On June 19, 2013 the Veteran passed away and his death certificate reflects that the cause of his death was cardiac arrest due to metastatic esophageal cancer. In June 2016, pursuant to the 2015 Board remand, the Veteran's medical records were reviewed by a VA physician. It was opined that it was at least as likely as not that esophageal cancer was secondary to or the result of the service-connected GERD and subsequent Barrett's esophagus. The rationale was that GERD or acid reflux refers to stomach acid refluxing back up into the esophagus, especially in the lower part of the esophagus whereby the acid is repeatedly bathing the lining of the distal esophagus which was not normal (i.e. normally stomach acid stays in the stomach where it belongs). When this acid refluxing process was persistent and went unchecked for a long period of time, the lining of the distal esophagus (just above the junction where the stomach and esophagus meet) underwent malignant transformation of the cells that comprise the lining. This was Barrett's esophagus and had been found on endoscopic examination. Once Barrett's esophagus was found, there is a very high frequency of this condition undergoing further malignant transformation into esophageal cancer. The physician also noted that the Veteran was service-connected for hiatal hernia, which further promoted GERD by allowing stomach acid to 'backwash' up into the esophagus even more due to the fact that the stomach-esophagus junction intermittently slid up into the chest cavity (rather than remaining in the abdominal cavity) and this further promoted acid reflux and the development of Barrett's esophagus and subsequent esophageal cancer. Given this pathophysiology, this case was not one of "aggravation " per se. The service-connected GERD and hiatal hernia led to the Barrett's esophagus and ultimately the esophageal cancer which was the natural course of this condition. Referencing medical literature, it was stated that most, if not all, esophageal adenocarcinomas arose from a region of Barrett's metaplasia, which was due to GERD. The role of chronic reflux as an independent risk factor for esophageal adenocarcinoma had not been well defined since more than 50 percent of cases of adenocarcinoma have no history of symptomatic reflux disease. However, reflux symptoms were associated with adenocarcinoma of the esophagus. The risk was greatest among patients with long-standing, i.e., 20 or more years, and severe symptoms. A meta-analysis had concluded that at least weekly symptoms of GERD increased the odds of esophageal adenocarcinoma fivefold, whereas daily symptoms increased the odds sevenfold. The increased risk of developing adenocarcinoma of the esophagus and gastric cardia persisted even after anti-reflux surgery. Among patients who have Barrett's esophagus, the risk of developing esophageal cancer was increased at least 30-fold above that of the general population, but the absolute risk of developing cancer in patients with Barrett's metaplasia was low. It was higher in the presence of high-grade dysplasia. In this case, a 100 percent schedular evaluation was assigned for esophageal cancer from July 27, 2011, the date of receipt of the Veteran's claim, under Diagnostic Code 7343. That Diagnostic Code provides for a 100 percent rating for malignant neoplasms of the digestive system which continues beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. However, six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. That Diagnostic Code does not list any specific symptoms. Thus, following the termination of such a 100 percent schedular rating under DC 7343, a schedular rating is to be made under the appropriate Diagnostic Code which sets forth the most relevant rating criteria, which in this case is Diagnostic Code 7346 for a hiatal hernia. From this, it is clear that the 100 percent rating for esophageal cancer since July 27, 2011, included the symptomatology due to and a result of the Veteran's service-connected GERD, and as to which the appellant testified. However, prior to July 27, 2011, which marks the commencement of the 100 percent rating under Diagnostic Code 7343, the medical evidence, lay evidence, and the June 2016 VA opinion show that the Veteran's GERD was productive of other symptom combinations productive of severe impairment of health that ultimately resulted in the development of esophageal cancer. Thus, prior to July 27, 2011, a 60 percent rating was warranted for GERD under Diagnostic Code 7346. And, following the assignment of a 100 percent rating under Diagnostic Code 7343 for esophageal cancer, the very symptoms which are included in any rating for GERD, or hiatal hernia, under Diagnostic Code 7346 were included in the 100 percent rating under Diagnostic Code 7343. Thus, since July 27, 2011, to assign a separate compensable rating for service-connected GERD under Diagnostic Code 7346 would result in pyramiding, i.e., double compensation, which is prohibited under 38 C.F.R. § 4.14. ORDER The criteria for an initial rating of 60 percent for GERD from October 24, 2007 to July 26, 2011 is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs