Citation Nr: 18157526 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-48 412 DATE: December 12, 2018 ORDER The September 12, 2013 substantive appeal is untimely, and the appeal is dismissed. Entitlement to an effective date earlier than September 12, 2013 for the grant of service connection for GERD is denied. Entitlement to an initial rating in excess of 10 percent for GERD is denied. FINDINGS OF FACT 1. The September 12, 2013 substantive appeal (Form 9) was not received within 60 days of the December 3, 2012 statement of the case (SOC) or within one year of the mailing of the July 21, 2010 rating decision. 2. A service connection claim for GERD was received on October 26, 2009 and denied in the July 2010 rating decision. The Veteran failed to timely appeal the denial. 3. Following the October 2009 claim, no claim (formal or informal) of service connection for GERD was received until September 12, 2013; and, service connection has been established effective from that date. 4. The Veteran’s GERD has not manifested 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 substantive appeal received on September 12, 2013 is not timely. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2018). 2. The July 2010 rating decision denying service connection for GERD and gout is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 3. The criteria for an effective date earlier than September 12, 2013 for the award of service connection for GERD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an initial rating in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Whether a timely substantive appeal was filed in response to the December 3, 2012 SOC, which continued the denials of service connection for GERD and gout. A substantive appeal generally must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the statement of the case to the claimant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b)(1). A July 21, 2010 rating decision denied the Veteran’s claims of service connection for GERD and gout. He filed a notice of disagreement (NOD) in August 2010. The RO issued an SOC continuing the denial of both claims on December 3, 2012. The Veteran filed a substantive appeal on September 12, 2013. He contacted VA on September 18, 2013 and was informed that his Form 9 was untimely and that the appeal had been closed. A November 2013 VA letter again informed the Veteran that his Form 9 could not be accepted, that he had missed the date to submit a timely substantive appeal, and that his claims of service connection for GERD and gout would need to be refiled. The Veteran’s September 2013 substantive appeal is untimely, as it was received more than 60 days after the December 2012 SOC and more than one year after the mailing of the July 2010 rating decision denying service connection for GERD and gout. Although the Veteran contends that he submitted a Form 9 within 60 days of the SOC, the record does not reflect receipt of any such document. See December 2013 NOD. Neither has the Veteran provided evidence of any such submission. The Board affords greater weight to the objective evidence of record than the Veteran’s unsupported statements. The Board notes the Veteran’s arguments that his appeal should proceed, because a supplemental statement of the case should have been issued to address his August 2010 NOD, that his appeal “appeared to still be active” on the “VA portal” in August to September 2013, and that he should have additional time to make submissions given the lengthiness of the appeal period. See September 2016 Form 9. The December 2012 SOC references receipt of the August 2010 NOD, thereby indicating that it was reviewed with the remainder of the record. The SOC also plainly advised the Veteran of his rights and responsibilities: You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. See item 5 of the instructions in VA Form 9, Appeal to Board of Veterans’ Appeals. The Veteran received notice of the requirements for a timely substantive appeal and neither submitted a timely appeal nor requested an extension of time. The RO refused to accept the Veteran’s substantive appeal, and he was promptly and repeatedly informed that his submission was untimely. This case is therefore clearly distinguishable from Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), in which the RO treated the veteran’s substantive appeal as if it was timely. As the September 2013 Form 9 is untimely with respect to the service connection claims for GERD and gout, the appeal must be dismissed. 2. Entitlement to an effective date earlier than September 12, 2013 for the award of service connection for GERD. The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(1); 38 C.F.R. § 3.400(b)(2). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records by themselves do not constitute “informal claims” for service connection. Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12, Vet. App. 32 (1998). The Veteran filed a claim of service connection for GERD on October 26, 2009. As previously discussed, the GERD claim was denied in a July 2010 rating decision, the Veteran submitted an NOD in August 2012, and an SOC was issued in December 2013. His substantive appeal was untimely, however. Accordingly, the July 2010 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Following the expiration of the appeal period for the initial GERD claim, the Board finds no correspondence regarding GERD was received until the September 2013 Form 9. The RO interpreted the Form 9 as a new service connection claim for GERD and service connection has been established effective from that date. As such, an earlier effective date for the grant of service connection for GERD is not warranted. 3. Entitlement to an initial rating in excess of 10 percent for GERD. Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s GERD is rated under Diagnostic Codes 7399-7346. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. In the March 2015 NOD, the Veteran specified that he was seeking a 30 percent rating for GERD. As such, entitlement to a 60 percent rating will not be discussed. Under Diagnostic Code 7346, a 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. (Continued on the next page)   The Veteran is not entitled to an initial 30 percent rating for GERD. The March 2015 Disability Benefits Questionnaire shows only infrequent episodes of epigastric distress, which does not meet the requirements for a 30 percent rating. Although the August 2016 VA examination report indicates persistently recurrent epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain, considerable impairment of health is not shown. The report indicates no functional impact or complications from GERD. Several symptoms, such as sleep disturbance, nausea, and vomiting, were noted to last less than one day, indicating relatively mild symptomology. VA treatment records also show that the Veteran denied abdominal pain in July 2016. In the absence of evidence showing considerable impairment of health from GERD, the Veteran is not entitled to an initial rating of 30 percent. The Board has considered whether the Veteran’s disability would warrant a higher rating under any other diagnostic code and determined that none are applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel