Citation Nr: 1803143	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  14-07 001A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to an effective date earlier than October 26, 2010, for the grant of service connection for gastroesophageal reflux disease (GERD), including based on clear and unmistakable error.

2. Entitlement to an increased initial rating for GERD, rated as noncompensable prior to September 28, 2012 and as 10 percent thereafter.

3. Entitlement to service connection for a cardiac condition, to include as secondary to service-connected GERD.


REPRESENTATION

Veteran represented by:	Stephen H. Cristal, Esquire




WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

J. Smith-Jennings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1968 to September 1968.

These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2013 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The April 2013 rating decision increased the rating for GERD to 10 percent effective November 19, 2012, and the December 2013 rating decision denied service connection for a cardiac condition associated with GERD.  Subsequently, a November 2013 rating decision changed the effective date for the award of a 10 percent rating for GERD to September 28, 2012.

The claims were previously before the Board in November 2015, at which time the Board remanded them for additional development.

The issues of entitlement to service connection for arthritis and entitlement to service connection for urinary tract infections have been raised by the record in a December 2011 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9 (b) (2017).

In this decision, the Board grants a June 14, 1972 effective date of service connection for GERD, and an increased initial rating of 30 percent for GERD from October 26, 2010.  The issues of entitlement to an increased rating for GERD for the period prior to October 26, 2010, and entitlement to service connection for a cardiac condition, to include as secondary to service-connected GERD are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. On June 14, 1972, the RO received the Veteran's initial claim of entitlement to service connection for a gastrointestinal condition, including GERD.

2. In July 1972, the RO denied service connection for GERD.  The RO acknowledged in the July 1972 rating decision that VA did not have all of the Veteran's service treatment records.  The Veteran did not appeal that denial.

3. In October 2010, the RO received the Veteran's claim seeking to reopen the previously denied claim of entitlement to service connection for GERD.

4. In a March 2011 rating decision, the RO granted service connection for GERD and assigned an effective date of October 26, 2010.

5. In June 2013 the Veteran submitted a statement disagreeing with the effective date assigned for the award of service connection for GERD.  

6.  The Veteran's October 2010 claim of entitlement to service connection for GERD was granted based in part on the receipt of relevant service department records that were not associated with the claims file when VA first decided the claim in July 1972.  As a result, VA was required to reconsider the June 1972 denial of the claim of entitlement to service connection.

7. The Veteran's entitlement to service connection for GERD preceded his June 14, 1972 claim for service connection for that condition.

8. Since October 26, 2010, the Veteran's service-connected GERD has been manifested by symptoms approximating persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.


CONCLUSIONS OF LAW

1. The criteria for an effective date of June 14, 1972, but not earlier, for the grant of service connection for GERD are met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c)(3), 3.400 (2017).

2. The criteria for a 30 percent disability rating for GERD have been met since October 26, 2010.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.20, 4.21, 4.113, 4.114, Diagnostic Code 7346 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Date

The Veteran contends that he is entitled to an earlier effective date than currently assigned for his service-connected GERD. 

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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.  See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).  The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.

If a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date of benefits will be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2).  If, however, at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. §  3.156 (c) (2017).  When benefits are awarded based all or in part on the receipt of service department records that were not "associated with the claims file when VA first decided the claim," VA allows the assignment of an effective date of benefits "on the date entitlement arose or the date VA received the previously decided claim, whichever is later."  38 C.F.R. § 3.156 (c)(3).

A review of the evidence of record reveals that the Veteran's claim of entitlement to service connection for GERD was initially denied in a July 1972 rating decision.  The RO acknowledged in the July 1972 rating decision that VA did not have all of the Veteran's service treatment records.  Although notified of the denial in a letter dated in July 1972, the Veteran did not initiate an appeal.  Moreover, no additional evidence was received within the one-year appeal period following notification of the denial.  See 38 C.F.R. § 3.156 (b).  Typically, this fact would render that decision final and binding based on the evidence then of record, and not subject to revision on the same factual basis.  See 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103 (2017).  In this circumstance, VA could only reopen and review this claim upon receipt of new and material evidence.  See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The effective date of benefits would then be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later.

However, resolving all doubt in favor of the Veteran the Board finds that additional relevant STRs were associated with the claims file following the July 1972 denial, and that the associated records at least in part formed the basis of the award of service connection.  The additional service treatment records existed at the time of the July 1972 denial, but were not associated with the claims file or considered by the RO until the March 2011 rating decision.  Pursuant to 38 C.F.R. § 3.156(c), the additional STRs received require reconsideration of the claim.  

Accordingly, because the Veteran's award of service connection was based in part on the receipt of service department records that were not "associated with the claims file when VA first decided the claim," the proper effective date of his award will be the latter of the date entitlement arose or the date VA received the previously decided claim.  38 C.F.R. § 3.156(c)(3).  

The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary.  38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015).  As the Veteran's claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case.
A claim may be either a formal or informal written communication" requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  See 38 C.F.R. § 3.1 (p).  Moreover, it has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. . . . It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.  The Board notes that the Veteran does not assert that he filed a claim of service connection for a stomach condition at any time prior to discharge from active military service, or within one year of his separation from service.  The record shows that the Veteran first filed a claim for a stomach condition in June 1972 via a VA Form 21-526, Application for Compensation or Pension. 

The date entitlement arose is the date the claimant meets the basic eligibility criteria for the benefit. The term "date entitlement arose" is somewhat ambiguous.  See Lalonde v. West, 12 Vet. App. 377, 382   (1999).  Here, a January 2011 VA examiner found that the Veteran's current heartburn condition was related to his in service heartburn condition.  This finding is sufficient to establish that entitlement arose prior to the June 14, 1972 date of claim.  The June 14, 1972 date of claim is therefore the appropriate effective date for the grant of service connection for hypertension.  As such, the March 2011 rating decision was clearly and unmistakably erroneous insofar as it assigned an effective date based on the October 2010 claim to reopen.  For this reason, the Board finds that the Veteran's June 2013 claim of entitlement to an earlier effective date of service connection is not an impermissible, freestanding claim, as there is in this case a legal basis for which relief may be granted.  See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

In sum, the Board finds that an earlier effective date of June 14, 1972 for the grant of service connection for GERD is warranted.  

Increased Rating

The Veteran's GERD is currently assigned a noncompensable rating prior to September 28, 2012 and a 10 percent rating thereafter under 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran asserts that he is entitled to a higher rating.

As will be discussed in the remand portion of this decision, the Board finds that given the above grant of an earlier effective date for GERD, a retrospective opinion assessing the severity of the disability would be helpful in resolving the claim for higher rating.  However, because the evidence of record currently supports a 30 percent rating for GERD for the period from October 26, 2010 onward, the Board finds that it is beneficial to the Veteran to bifurcate the claim and grant the 30 percent rating for GERD in this decision, and remand the issue of entitlement to an increased rating for GERD on alternate bases for a retrospective opinion.  See Soyini v. Principi, 1 Vet. App. 540 (1991).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1.

Under 38 C.F.R. § 4.114, Diagnostic Code 7346 a 10 percent rating is assignable with two or more symptoms for the 30 percent evaluation 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 rating is assignable 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.

Here, the Board finds that the criteria for a 30 percent rating have been approximated for the period from October 26, 2010 onward.

In this regard, the evidence of record includes a January 2011 report of VA examination which reflects that the Veteran reported watching what he ate, and symptoms including episodic heartburn, stomach pains, blood in stool, abdominal pain, and acid reflux.  The Veteran denied dysphagia, pyrosis, vomiting, recurrent hematemesis, melena, anemia, weight loss, and regurgitation.

The evidence of record also includes an April 2013 report of VA examination which documents current diagnoses of gastroesophageal reflux and hiatal hernia.  The Veteran's treatment plan included continuous medication for the diagnosed conditions.  The Veteran reported symptoms including acid reflux, indigestion, intermittent nausea and vomiting, heartburn, midepigastric pain, and sleep disturbance.  The Veteran denied weight loss, hematemesis, melena, and esophageal stricture.

Private treatment records dated in November 2014 document gagging, and a diagnosis of ulcer and duodenitis with H. Pylori.

At the August 2016 Board hearing, the Veteran testified that his symptoms have been about the same or worse since as long as he can remember.  He also testified that he has to watch what he eats, has vomiting every day, indigestion, difficulty swallowing, and acid reflux.    

As the Veteran testified that his symptoms have been about the same or worse since he can remember and he has vomiting every day, the Board finds that his symptoms were persistently recurrent; and because they impaired the Veteran's ability to sleep, the Board finds this constitutes a considerable impairment of his overall health.

A higher rating of 60 percent is not warranted, as the evidence of record does not support findings consistent with pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

In sum, the Board finds that the criteria for a rating of 30 percent for GERD have been met from October 26, 2010 onward.  Therefore an increased rating of 30 percent for GERD is warranted.  Entitlement to an increased rating for GERD for the period prior to October 26, 2010, is being remanded as discussed below.


ORDER

An earlier effective date of June 14, 1972, for the grant of service connection for GERD, is granted.  

An increased initial rating of 30 percent for GERD is granted for the period since October 26, 2010.


REMAND

Although the Board regrets the delay, further development is necessary prior to the adjudication of the issues of entitlement to an increased rating for GERD for the period prior to October 26, 2010, and entitlement to service connection for a cardiac condition, to include as secondary to service-connected GERD.

First addressing the claim for increased rating for GERD, the Board notes that the clinical evidence of record includes VA examination reports dated in January 2011 and April 2013, and VA and private medical records dated October 2007 to November 2015.  In light of the above grant of an earlier effective date of June 14, 1972 for service connection for GERD, the Board finds that a retrospective opinion addressing the severity of the disability throughout the pendency of the appeal, would be helpful in resolving the claim for a higher rating.  See Chotta v. Peake, 22 Vet. App. 80, 84-85   (2008); Vigil v. Peake, 22 Vet. App. 63, 67 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period).

Turning to the claim for service connection for a cardiac condition.  The Board notes that the evidence of record includes a November 2013 VA examination report in which the examiner opined that it is less likely than not that the claimed cardiac condition is proximately due to or the result of the Veteran's service connected GERD.  The examiner reasoned that the Veteran had not submitted any information corroborating that he has a cardiac condition.  However, the examiner's statement that the Veteran had not submitted any information corroborating that he had a cardiac condition is inaccurate.  The Veteran submitted VA records dated in September 2012 which document a diagnosis of multivessel coronary artery disease status post CABG.  Additionally, the examiner did not provide an opinion as to aggravation.  Therefore, the Board finds the November 2013 VA examination inadequate upon which to decide the claim.  

The evidence of record also includes an August 2015 VA examination report in which the examiner opined that the Veteran's cardiac condition is less likely than not proximately due to or the result of the Veteran's service connected condition.  The examiner reasoned that a November 2014 gastroenterology report was silent for a diagnosis of GERD.  However, a review of the evidence of record reveals that the Veteran had been diagnosed with GERD at the time of the August 2015 VA examination.  See April 2013 VA Examination.  Therefore, the Board finds the August 2015 VA examination inadequate upon which to decide the claim.  An additional opinion is warranted. 

Accordingly, the case is REMANDED for the following action:
1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records.

2. After completing the above development (to the extent possible), obtain a retrospective opinion concerning the nature and severity of the Veteran's GERD from June 1972 to October 26, 2010.  The claims file should be made available to and reviewed by the examiner.  An examination of the Veteran should be performed if deemed necessary by the examiner.  The examiner is asked to specifically discuss the Veteran's contention that his symptoms (including vomiting, acid reflux, indigestion, and difficulty swallowing) have been about the same or worse since service.  All findings should be reported in detail.

3. Schedule the Veteran, if necessary, for a VA examination to determine the nature and etiology of his cardiac condition. The claims file (including any additional medical evidence obtained as a result of this Remand) should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified cardiac condition, including the Veteran's competent account of his symptoms.  Following review of the claims file and examination of the Veteran, if necessary, the examiner should respond to the following:

(a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed cardiac condition had its onset during active service or within one year of the Veteran's separation from active service, or is otherwise related to service? 

(b) Is it at least as likely as not that the diagnosed cardiac condition was caused or aggravated by the Veteran's service-connected GERD?

(c) If the examiner finds that the cardiac condition has been permanently worsened beyond normal progression (aggravated) by the Veteran's service-connected GERD, the examiner should attempt to quantify the degree of aggravation beyond the baseline level that is attributed to the service-connected disability.

All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record.  If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge.

4. After completing the requested actions and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  The case should then be returned to the Board for further appellate consideration, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs