Citation Nr: 20007980 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-59 977 DATE: January 30, 2020 ORDER An effective date earlier than January 12, 2015, for the assignment of a 10 percent rating for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to a rating higher than 10 percent for GERD is remanded. FINDINGS OF FACT VA received a claim of entitlement to a compensable rating for GERD on January 12, 2015; prior thereto, it is not factually ascertainable that the Veteran’s GERD met the criteria for a 10 percent rating. CONCLUSIONS OF LAW The criteria for an effective date earlier than January 12, 2015, for the assignment of a 10 percent rating for GERD are not met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to May 2012. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues above are the only issues ripe for adjudication at this time. 1. Entitlement to an effective date earlier than January 12, 2015, for the assignment of an increased rating for GERD The Veteran seeks an effective date prior to January 12, 2015, for the assignment of a 10 percent rating for GERD. He has provided no specific contentions in this matter or identified a date he believes to be correct. However, he argues that an increased evaluation should be assigned earlier than January 12, 2015, based on the severity of his symptoms prior to that date. The Board concludes that the preponderance of the evidence is against an effective date earlier than January 12, 2015, for the assignment of a 10 percent rating for GERD because it is not factually ascertainable prior to this date that the Veteran met the criteria for a 10 percent rating for GERD. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. For increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. at 126-27 (1997). Generally, a specific claim in the form prescribed by VA must be filed for VA benefits to be paid. 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151, 3.160. A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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 Veteran initiated a claim for an increased evaluation for GERD on January 12, 2015 and submitted the claim July 31, 2015. See VA Memo (August 2015); VA 21-526b (July 2015). VA outpatient treatment records show the Veteran experienced an increase in the severity of his GERD, but these records are dated more than a year prior to the claim. The claim was filed more than a year following this evidence. The evidence within a year prior to the claim does not reflect an increase, and therefore, it is not factually ascertainable. Based on December 2015 VA examination findings that showed the symptoms of GERD more nearly met the criteria for a 10 percent rating, a 10 percent rating for GERD was assigned. The Veteran had symptoms of persistently recurrent epigastric distress, pyrosis, reflux, and nausea four or more times per year. There are no records dated in the year prior to the claim that show findings that more nearly reflect the criteria for a 10 percent rating for the GERD. As noted below, there is evidence of prior greater symptoms, but these records are dated more than a year prior to the date of claim. Therefore, the assigned effective date is correct and there is no basis to assign an earlier effective date for the award. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to a rating higher than 10 percent for GERD The Veteran also requests a rating higher than 10 percent for GERD. In October 2017, the originating agency sent the appellant and his representative a Statement of the Case (SOC). Subsequently, VA obtained a VA examination in February 2018. On examination, the Veteran reported that he took Protonix daily but continued to have symptoms; avoided spicy foods coffee, and carbonated drinks; slept with the head of bed elevated on multiple pillows; and drank a capful of apple cider vinegar in a bottle of water when GERD was “really bad.” Symptoms included pyrosis, reflux, regurgitation, substernal pain, and sleep disturbance four or more times per year caused by esophageal reflux. Upon examination, the esophagus had no stricture, spasm, or acquired diverticulum. The examiner found no functional impairment related to the Veteran’s GERD. If the Agency of Original Jurisdiction (AOJ) receives evidence after an appeal is initiated but before the appeal is transferred to the Board, the evidence must be referred to the appropriate rating or authorization activity for review and disposition (i.e. Remand for SSOC). 38 C.F.R. § 19.37(a). The record does not show that the AOJ has readjudicated the claim taking into consideration the February 2018 VA examination or issued a Supplemental Statement of the Case on the matter. Therefore, to ensure due process of law, remand is necessary. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Readjudicate the issue of entitlement to a rating higher than 10 percent for GERD.   2. If the benefit sought on appeal is not granted in full, then send the Veteran and his representative a Supplemental Statement of the Case on that matter. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E., Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.