Citation Nr: 1804809 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-10 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date prior to June 22, 2010, for the grant of entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to an increased rating greater than 10 percent for GERD. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 2005 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the below Veterans Law Judge (VLJ) via videoconference in July 2017. A transcript of the hearing has been associated with the claims file. The Board notes that with respect to the above-listed claims only the issue of entitlement to an earlier effective date for the grant of service connection for GERD was certified to the Board. During the Veteran's Board hearing his representative argued that the issue of entitlement to an increased rating for GERD also was in appellate status. The Board took testimony on that issue. Subsequent review of the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the RO closed the increased rating appeal on the basis that the Veteran had failed to timely respond to the Statement of the Case (SOC), but review of the records clearly indicates that VA received a timely substantive appeal from the Veteran in October 2014 as to the October 2014 SOC denying an increased rating for GERD. There is no indication that the Veteran withdrew his appeal of the issue. As such, the Board has jurisdiction of the claim. Since the last adjudication of the claims additional evidence with respect to the increased rating claim has been associated with the claims file. After February 2, 2013, the Board no longer is required to obtain a waiver of initial review by the agency of original jurisdiction (AOJ). See § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of the substantive appeal, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence.) The Board has interpreted this waiver to apply only to material submitted by the Veteran. In this case, the additional evidence was added by VA. That said, the Veteran and his representative specifically discussed their desire for the Board to adjudicate the increased rating issue during the Board hearing. Although this was not a formal waiver of review of the evidence by the Agency of Original Jurisdiction (AOJ), in context it is clear that the Veteran desires the Board to adjudicate the appeal at this time. As such, the Board finds that final determinations as to the claims on appeal can be made without prejudice to the Veteran. In addition to the foregoing, the Board recognizes that the issues of entitlement to service connection for right ankle sprain and sleep apnea; increased ratings for left ankle collateral, lateral, and deltoid ligament sprains and left fifth metacarpal malunion and instability; and earlier effective dates for the grant of service connection for the foregoing increased rating issues have been certified to the Board. These issues, however, are awaiting a videoconference hearing before a representative of the Board. The Veteran was sent a letter in July 2017 that he had been placed on the hearing docket, but the hearing has yet to be scheduled. As such, the issues are not ripe for adjudication and will not be discussed further herein. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's original claim for entitlement to service connection for GERD was received by VA on June 22, 2010, more than one year after his separation from service. 2. Prior to the receipt of the June 2010 claim there were no pending requests for service connection that remained unadjudicated. 3. The Veteran's GERD is not manifested by pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 22, 2010, for the award of service connection for GERD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a disability rating of 30 percent, but no higher, for GERD have been met for the entire appellate period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7399-7346 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has identified any potential shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Earlier Effective Date "Unless specifically provided otherwise...the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor." 38 U.S.C. § 5110 (a) (2012). "The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release." 38 U.S.C. § 5110(b)(1). In this case, the Veteran separated from his second (and final) period of active service in December 2006. He did not submit a claim of entitlement to service connection for GERD within one year from his discharge. Therefore, assignment of an effective date back to the day following discharge is not possible. Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. On June 22, 2010, VA received a statement from the Veteran indicating that he was "filing a new claim for GERD..." After the Veteran submitted his June 2010 statement requesting entitlement to service connection for GERD, in a September 2011 rating decision the RO granted entitlement to service connection and assigned a 10 percent disability rating, effective June 22, 2010. The Veteran asserts the effective date for the grant of service connection should date back to January 2007 when he filed his initial claim for VA compensation benefits. In that regard, the Veteran's original claim for VA compensation benefits was received in January 2007. At that time, the Veteran brought claims for entitlement to service connection for an ankle injury, fractured left hand, shoulder injury, hearing loss, tinnitus, posttraumatic stress disorder, and athlete's foot. The Veteran also provided a short statement regarding his disabilities and why he believed they were related to service. At no point did he mention GERD. The Board recognizes that records during service and VA records at the time of the adjudication of the claims documented stomach problems; however, VA regulations dictate that a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). The Board finds no indication in the original January 2007 claim that the Veteran intended to file a formal or informal claim for benefits based on gastrointestinal problems. The Board also finds it highly significant that during an October 2007 VA general medical examination he explicitly denied multiple gastrointestinal problems. Had the Veteran intended to bring a claim for GERD it is reasonable to assume that he would have discussed such symptoms in his claim, during his VA examination, or in some other communication. There is no evidence that he did so. Indeed, the Veteran explicitly appealed multiple issues adjudicated in a January 2008 rating decision, but failed to make any statement or argument regarding GERD. Instead, the Veteran's argument appears to be that there was medical evidence of stomach problems at the time of the initial adjudication of his claim and that was sufficient to raise a claim for GERD. The Board disagrees as, based on the law in effect at the time of the original claim and determination, medical records could not constitute an informal claim unless service connection had previously been established, or had been denied on the basis that the condition was noncompensable. MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b) (2007). In this case, the evidence does not suggest that a claim for entitlement to service connection for GERD was received by VA prior to June 22, 2010. As noted above, the effective date for a grant of service connection on an initial claim received more than one year after separation from service is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, June 22, 2010, is the earliest effective date possible under the relevant laws and regulations for the Veteran's GERD claim and the claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Rating 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's GERD is rated at 10 percent under DC 7399-7346 as analogous to hiatal hernia. The Veteran claims the current 10 percent rating does not accurately reflect the severity of his condition. DC 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 DCs 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 DC 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 Veteran was afforded a VA examination in May 2014. The Veteran reported a history of GERD symptoms from September 2006. The Veteran described sharp pain in the chest that could be intense, as well as burning in the chest and throat. The Veteran was on continuous medication for the GERD (Omeprazole). Current symptoms included persistently recurrent epigastric distress, infrequent episodes of epigastric distress, pyrosis (heartburn), reflux, regurgitation, substernal arm or shoulder pain, sleep disturbances more often than 4 times per year lasting for 10 or more days, and 4 or more episodes of nausea lasting less than 1 day. The Veteran denied dysphagia, anemia, weight loss, vomiting, and bloody stool. There were no related scars or esophageal stricture, spasm, or diverticula. A May 2014 gastrointestinal procedure showed moderate, chronic active gastritis. There was no significant inflammation, intestinal metaplasia, dysplasia, or malignancy. There also was evidence of h. pylori. The assessment was persistent GERD and the Veteran was directed to continue his medication as prescribed. In his October 2014 substantive appeal, the Veteran argued that the 10 percent rating was not reflective of the intensity of his GERD pain. He had vomiting, numbness in the left shoulder and breastplate, and intense stabbing / burning in the esophagus, stomach, large intestine, and right lower side above the pelvis. The prescribed medication was ineffective and at times he had to go to the emergency room for a "GI Cocktail" for relief. He also had sleep problems that forced him to sleep upright in a chair nightly. In March 2016, the Veteran sought treatment in the emergency room for stomach acid pain. The Veteran reported that medication had not helped and that he got those types of flare-ups from time to time. The Veteran described nausea; burning in the esophagus, throat, and stomach; chest tightness and stomach cramps. The Veteran was afforded a VA GERD examination in June 2016. The Veteran was on continuous medication and reported persistent recurrent epigastric distress, infrequent episodes of epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, substernal pain, and sleep disturbance due to reflux 4 or more times per year lasting less than 1 day. There was no esophageal stricture, no scars, and the GERD did not affect the Veteran's ability to work. The examiner indicated that the treatment for h pylori for ulceration likely was the cause of some of the Veteran's symptoms and that he was conflating his symptoms attributable to the ulceration and the GERD. "Based only on clinical history it is somewhat reasonable to believe that his GERD is worse but not to the extent reported by the claimant. The numerous complaints made by the claimant are likely reflective of his likely h. pylori." The examiner also stated that the h. pylori was unrelated to the GERD. During the Veteran's June 2017 Board hearing, the Veteran testified that the GERD "affected my life pretty negatively. There's not a day or moment that it doesn't like affect my physically and mentally." He described regurgitation and burning in the stomach and chest, which resulted in the Veteran seeking treatment in the emergency room about once per month. The Veteran had used medication and tried to change his diet, without success in calming his symptoms. After a careful review of the record and for the reasons and bases expressed immediately below, the Board finds that the Veteran's symptomatology more closely approximates that of a 30 percent rating under DC 7346. The Board finds that such rating is warranted for the entire appellate time period. The Board recognizes that the Veteran failed to report dysphagia (difficulty swallowing) at the time of the May 2014 VA examination, but reported all other problems and given his consistent reports of significant gastrointestinal symptoms the Board will afford him the benefit of the doubt and apply this rating for the entire appellate time period. In reaching that decision, the Board acknowledges the conclusion of the June 2016 VA examiner that a significant degree of the Veteran's symptoms were attributable to h. pylori that was unrelated to his service-connected GERD. That said, the Veteran was not diagnosed with h. pylori until 2014 and for multiple years prior to his claim for increase there is evidence of poorly controlled GERD that necessitated multiple trips to the emergency room because his prescribed medication was ineffective at managing his symptoms. As there is no concrete evidence of when ulceration associated with h. pylori first manifested and the examiner did not specifically note what symptoms and/or the degree of the existing symptoms were attributable to the GERD, the Board will afford the Veteran the benefit of the doubt that his symptoms meet the criteria for a 30 percent rating based entirely on his GERD symptoms. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor). A rating greater than 30 percent under DC 7346 is not warranted at any point on appeal. The Veteran does not have material weight loss, hematemesis, melena, moderate anemia, or other symptom combinations productive of severe impairment of health. The Veteran reports that once a month his prescribed medication is not sufficient to manage his symptoms and he requires additional emergency room treatment. The Board does not find that such a scenario is reflective of the criteria necessary for a 60 percent rating. The Board has considered whether a higher rating would be warranted under another DC, but finds that the Veteran's symptoms are most accurately rated under DC 7346. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an effective date earlier than June 22, 2010, for the grant of entitlement to service connection for GERD is denied. Entitlement to an increased rating of 30 percent for GERD is granted, subject to the laws and regulations governing the payment of monetary awards. ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs