Citation Nr: 18141292 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 09-35 406 DATE: October 10, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an effective date prior to August 2, 2012, for the assignment of a 50 percent disabling rating for PTSD is denied. Entitlement to service connection for purposes of establishing eligibility for VA outpatient dental treatment is dismissed as moot. REMANDED Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s GERD while productive of persistently recurrent epigastric distress, pyrosis, reflux, regurgitation and substernal pain, has not been shown to result in considerable impairment of health at any time throughout the appeal period. 2. In an April 2008 rating decision, the RO granted service connection for PTSD, assigned a 30 percent rating effective March 23, 2007, and notified the Veteran about the decision that the same month; the Veteran did not appeal the decision. 3. The RO received a claim for increase for PTSD on August 2, 2012; it is not factually ascertainable that the service-connected PTSD increased in severity, beyond the symptoms contemplated by a 50 percent disability rating on any date within the year preceding August 2, 2012, the date of the claim for an increase. 4. The Veteran has been receiving ongoing outpatient dental treatment at the VA clinic in Columbus, Ohio. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1. 4.114, Diagnostic Code 7346 (2017). 2. The criteria for an effective date earlier than August 2, 2102, for the grant of an increased rating of 50 percent for the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for establishing service connection for dental disability for the purpose of establishing eligibility for outpatient dental treatment is dismissed as moot. 38 U.S.C. §§ 1712, 7104, 7105 (2012); 38 C.F.R. § 17.161 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and March 2015 rating decisions. 1. Entitlement to an initial evaluation in excess of 10 percent for GERD The Veteran contends that his service-connected GERD warrants an initial 30 percent rating because his GERD symptoms, including epigastric distress, pyrosis, regurgitation, and substernal pain, result in a considerable impairment of health. See August 2018 letter. Service connection for GERD was awarded in a March 2015 rating decision and the RO assigned a 10 percent rating effective March 2007. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. 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. § 1155; 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran’s GERD has been rated by analogy under 38 C.F.R. § 4.114, Diagnostic Code 7346, which provides a 10 percent rating for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is assigned for 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. 38 C.F.R. § 4.114. Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran’s service-connected GERD has for the entire period of the initial rating more closely approximated the criteria for the current 10 percent rating but no more. 38 C.F.R. §§ 4.3, 4.7. In this regard, while VA treatment records and reports of VA examination dated in 2012, 2015, and 2016 show the Veteran’s GERD was productive of recurrent epigastric distress, pyrosis, regurgitation, sleep disturbance, and substernal pain, they do not show that these symptoms cause considerable impairment of health. Notably, none of the reports of VA examination show that the Veteran’s GERD symptoms resulted in complications or other medical conditions. The Board notes the Veteran reported waking up gaging and coughing in the middle of the night during the 2016 examination; however, treatment records show the Veteran has an unrelated diagnosis of obstructive sleep apnea and those symptoms appear to be associated with that diagnosis. Moreover, VA treatment records repeatedly show the Veteran’s GERD was stable on medication, with no reported complaints of nausea, vomiting, or abdominal pain. E.g.. July 2014 and January 2017. The Board is aware the Veteran argued in August 2018 that his tooth loss and decay, which he claims is due to the GERD, is sufficient proof of considerable impairment of health; however, the Board already denied service-connection for a dental disorder secondary GERD in June 2014. Therefore, as the two have been determined not to be related, the tooth condition does not support a higher rating. In sum, based on the evidence delineated above, an initial evaluation in excess of 10 percent, to include “staged” ratings, is not warranted for any period of the appeal because the evidence does not show symptomatology consistent with considerable impairment of health. 38 C.F.R. § 4.114. The Board considered rating the Veteran’s disability under another diagnostic code, but found none that would avail the Veteran of a higher rating. Id. Should the Veteran’s disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. 2. Entitlement to an effective date prior to August 2, 2012, for the assignment of a 50 percent disabling rating for PTSD At the outset, the Board acknowledges that in the remand below, a new VA examination for PTSD is being requested to ascertain the current level of severity of the symptoms associated with the same. The Board notes that while the evidence that will be obtained pursuant to that remand bears on the severity of the PTSD, it has no bearing on the adjudication of the effective date of the currently assigned 50 percent disability rating as the focus of the requested development is the level of severity of the symptoms since 2016, or the current level of symptomatology. Therefore, the evidence obtained is not relevant to the issue being decided herein and the Board sees no reason why to defer adjudication until the remand order has been completed. The Veteran argues that he is entitled to an effective date earlier than August 2, 2012, for the assignment of the 50 percent disability rating for his PTSD. He does not set forth a specific date. Having carefully considered the claim in light of the applicable law and evidence of record, the Board finds that a date earlier than August 2, 2012, is inconsistent with the regulations concerning effective dates for award of increased compensation. Governing law provides that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Applicable regulation states that claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). The Board recognizes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply. Once service connection has been established, receipt of specified types of medical evidence, including VA examination reports, will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of such a claim. 38 C.F.R. § 3.157(b). Historically, in an August 2008 rating decision, the RO granted service connection for PTSD and a 30 percent rating was assigned effective on March 23, 2007, the date of claim. The Veteran was notified of the decision in April 2008. The Veteran did not disagree with either the initial rating or effective date assigned. 38 C.F.R. § 20.302(a). The Veteran has not alleged that there was clear and unmistakable error (CUE) in the 2008 rating decision. In the absence of CUE, this decision may not be revised. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105(a), 20.201, 20.302. Accordingly, the claim for an earlier effective date for the 50 percent increased rating for service-connected PTSD must therefore be considered in relation to any subsequent claim for an increased rating. Under the provisions of 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders is used to determine disability ratings for PTSD. A 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. While the Veteran did receive treatment for his PTSD in the year prior to August 2, 2012, treatment notes dated between August 2011 and August 2012 reveal the Veteran was repeatedly found to be appropriately dressed and groomed. His speech was normal and his long and short-term memory were intact. His affect was congruent with mood. He was oriented in all spheres and his thought process was goal oriented. There were no complaints of suicidal or homicidal ideation. There were no psychotic symptoms. E.g.. August 2011, February 2012, April 2012, May 2012, June 2012, and July 2012. While there were some complaints of irritability, anxiety, nightmares, and sleeplessness, those are accounted for in the 30 percent rating assigned prior to August 2, 2012. It was not until VA examination in October 2013 that the Veteran’s PTSD was objectively shown to have worsened so as to warrant a 50 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. At that time, the Veteran complained of waking in cold sweats, hypervigilance, and performing perimeter checks. He also indicated that he was having a very difficult time controlling his anger, to include “road rage.” He informed the examiner that he was estranged from his daughter and had a limited social circle. He avoided church activities other than attending services. He reported being nervous in crowds. The Veteran described an obsessive need to keep track of items, performing rituals at night to check and recheck where he kept his keys and other necessary items to prepare for work the next day. He described becoming very angry and irritable when he is late. He endorsed intense emotional and physiological distress related to trips to the beach and boating. His symptoms resembled a panic attack, but could also quality as re-experiencing. He reported diminished interest in activities such as hunting, survivor guilt, and periods of low energy. He reported fear of his life being cut short due to family medical history and his past substance abuse. As noted above, the effective date of an award based on a claim for increased disability compensation, shall be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year of such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). The medical evidence shows no earlier date (within the year preceding the August 2, 2012, increased rating claim) that PTSD was of a degree as would warrant a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. In fact, the evidence does not show a worsening of the PTSD symptomatology until October 2013, which would be later than the date of claim. However, the RO has assigned the date of claim as the effective date, which the Board shall not set aside. Accordingly, there is no basis for the assignment of an effective date earlier than August 2, 2012, for an increased 50 percent rating for the service-connected PTSD under the law. 3. Entitlement to service connection for purposes of establishing eligibility for VA outpatient dental treatment In June 2014, the Board denied service connection for a dental disorder, to include as secondary to GERD, for VA compensation purposes. The same decision referred the claim for dental treatment to determine if the Veteran met the basic eligibility requirements of 38 C.F.R. § 17.161 (authorization for outpatient dental treatment). The Veteran has been receiving ongoing dental treatment at the VA outpatient clinic in Columbus, Ohio. See June 2017 Deferred Rating Decision. Dental care records show the Veteran has been classified as Class V. See e.g. September 2017 dentistry procedure note. Thus, there is no “controversy” or “issue” currently before the Board regarding the issue of entitlement to service connection for a dental disorder for purposes of establishing eligibility for VA dental treatment. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). As such, that issue is dismissed as moot. 38 U.S.C. § 7105 (d)(5). REASONS FOR REMAND Entitlement to an evaluation in excess of 50 percent for PTSD is remanded. The Veteran last underwent a VA examination to assess the severity of his PTSD in June 2016, over two years ago. In an August 2018 letter, the Veteran’s attorney contends that the 2016 VA examination was not an adequate reflection of the severity of his PTSD symptoms. Specifically, he maintains that since the examination he has had markedly increased occupational and social impairment due to such symptoms as occasional thoughts of suicide, obsessional rituals, depression, impaired impulse control, spatial disorientation, increased anxiety, avoidance, irritability, anger, and sleeplessness. As the Veteran has stated that his PTSD has worsened in severity since the 2016 examination, he should be provided another VA examination to ascertain the current severity of his service-connected PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Any updated VA treatment records since March 2017 should also be obtained. 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. The RO should obtain updated VA treatment records pertinent to treatment of the Veteran’s PTSD, to include those dated from March 2017 to the present. All attempts to secure this evidence must be documented by the RO and VA facilities must provide a negative response if no records are available. 2. Once the development above has been completed, schedule the Veteran for a VA examination to determine the current degree of severity of his PTSD. The examiner should elicit a complete history from the Veteran. The examination report should include a full psychiatric diagnostic assessment and an explanation of the significance of the current levels of psychological, social, and occupational functioning due to the PTSD. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel