Citation Nr: 21030720 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-15 494 DATE: May 19, 2021 ORDER The appeal for service connection for a skin disorder, having been withdrawn, is dismissed. An effective date of June 18, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD) with sleep disorder and anxiety is granted. Service connection for a sleep disorder, having been rendered moot, is dismissed. Service connection for anxiety disorder, having been rendered moot, is dismissed. For the initial rating period on appeal from February 22, 2011 to September 3, 2019, a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. For the initial rating period on appeal from September 3, 2019, a rating in excess of 60 percent for GERD is denied. REMANDED A higher initial disability rating for PTSD with sleep disorder and anxiety, in excess of 30 percent from September 16, 2011 to February 28, 2017, and in excess of 70 percent from February 28, 2017, is remanded. FINDINGS OF FACT 1. In an August 2018 statement, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the issue of service connection for a skin disorder. 2. On June 18, 2010 VA received an original claim for service connection for a psychiatric disorder, claimed as PTSD. 3. No claim, formal or informal, for service connection for a psychiatric disorder was received by VA prior to June 18, 2010. 4. The claims for service connection for a sleep disorder and anxiety have been rendered moot by the grant of an effective date of June 18, 2010 for service connection for PTSD with sleep disorder and anxiety. 5. For the initial rating period on appeal from February 22, 2011 to September 3, 2019, GERD manifested as epigastric distress, reflux, sleep disturbance, and vomiting, which was not productive of considerable impairment of health. 6. For the initial rating period on appeal from September 3, 2019, the Veteran has been in receipt of the maximum 60 percent rating for GERD. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for a skin disorder. 38 U.S.C.§ 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an effective date of June 18, 2010, but no earlier, for the grant of service connection for PTSD with sleep disorder and anxiety have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The claim for service connection for a sleep disorder has been rendered moot by the grant of an effective date of June 18, 2010 for PTSD with sleep disorder and anxiety. 38 U.S.C. §§ 7104(a), 7105. 4. The claim for service connection for anxiety disorder has been rendered moot by the grant of an effective date of June 18, 2010 for PTSD with sleep disorder and anxiety. 38 U.S.C. §§ 7104(a), 7105. 5. For the initial rating period on appeal from February 22, 2011 to September 3, 2019, the criteria for a disability rating in excess of 10 percent for GERD have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346. 6. For the initial rating period on appeal from September 3, 2019, the Veteran is in receipt of the maximum 60 percent schedular disability rating for GERD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1967 to May 1971. This case was before the Board in March 2015, where the Board, in pertinent part, granted service connection for a sleep disorder and anxiety as symptoms related to the already service-connected PTSD, denied service connection for a skin disorder, denied an effective date earlier than September 16, 2011 for the grant of service connection for PTSD, and denied a disability rating in excess of 30 percent for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a June 2016 Memorandum Decision, the Court partially vacated the Board's decision. This case was previously before the Board in July 2018, where the Board, in pertinent part, took jurisdiction over the GERD initial rating issue on appeal and remanded all issues on appeal for additional development. As discussed in detail below, the Board is granting an earlier effective date for service connection for PTSD with sleep disorder and anxiety, which constitutes a full grant of the benefit sought on appeal as to not only the effective date issue but the other claims that have been labeled as service connection for sleep disorder and service connection for anxiety. The symptoms of sleep disorder and anxiety have been explicitly adjudicated to be a part of the service-connected PTSD disability, and the grant of earlier effective date of June 18, 2010 for the PTSD with sleep disorder and anxiety means that these symptoms are service connected and will be rated by the RO for the initial rating period from June 18, 2010 to September 16, 2011 when implementing the Board's grant of earlier effective date for PTSD. The Veteran will be able to disagree with the initial rating assigned for this period. Any discussion with regard to compliance with the Board's remand instructions is rendered moot by the full grant of benefits sought on appeal, that is, by full recognition of symptoms of sleep disorder and anxiety as being related to the service-connected PTSD disability, and compensation provided accordingly for the degrees of anxiety and sleep disorder. An August 2018 statement reflects the Veteran withdrew the issue of service connection for a skin disorder. As to a higher initial rating for GERD, a September 2019 VA examination report has been associated with the record; therefore, an additional remand to comply with the July 2018 remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Withdrawal of Service Connection for Skin Disorder Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. In an August 2018 statement, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the substantive appeal as to the issue of service connection for a skin disorder. As the Veteran has withdrawn the appeal regarding this issue, there remain no allegations of errors of fact or law for appellate consideration as to the issue. Accordingly, the Board does not have jurisdiction to review the issue, and the issue will be dismissed. 2. Earlier Effective Date for PTSD with Sleep Disorder and Anxiety to June 18, 2010 is Granted. 3. Service Connection for Sleep Disorder is Moot. 4. Service Connection for Anxiety is Moot. For claims received prior to March 24, 2015, as in this case, a "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1. Throughout the course of this appeal, including in a September 2015 brief, the Veteran's representative has essentially contended that an earlier effective date is warranted for the grant of service connection for a psychiatric disorder. The June 2016 Memorandum Decision notes the contention that service connection for PTSD should be awarded from June 18, 2010, the date of an original claim for service connection for a psychiatric disorder. Procedurally, a December 2011 rating decision granted service connection for the primary PTSD disability, effective September 16, 2011. Subsequently, a March 2015 Board decision granted service connection for sleep disorder and anxiety as symptoms related to the service-connected PTSD. The Board finds that June 18, 2010 is the date of receipt of the original claim for service connection for PTSD. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i) (effective date for direct service connection claims is the later of the date of receipt of claim or the date entitlement arose). An effective date to June 18, 2010, the date of the first claim for service connection for any psychiatric disorder, is the earliest date that is legally possible for service connection for the PTSD with sleep disorder and anxiety, as that is the date of the first (original) claim for service connection. There is no legal basis for an effective date prior to June 18, 2010 for the award of service connection for the psychiatric disorder. Even though there is a psychiatric diagnosis in the VA treatment records dated in February 2010, the June 2010 date of claim for service connection controls the effective date for grant of service connection, as the claim date of June 2010 is later than the date entitlement arose (VA treatment diagnosis in February 2010). The earliest act or intention of filing a service connection claim for PTSD is the June 18, 2010 claim. VA statute and regulations, which provide that the effective date for direct service connection claims is the later of the date of receipt of claim or the date entitlement arose, do not provide for an effective date earlier than the date the June 18, 2010 claim was received by VA, regardless of when entitlement arose, that is, when there was a diagnosis of psychiatric disorder. Directly addressing the June 2016 Memorandum Decision, the claim for service connection for sleep disorder and anxiety have been rendered moot by the grant of an effective date of June 18, 2010 for service connection for the psychiatric disorder. While the representative has contended that separate service connection should be awarded for a sleep disorder and anxiety, when implementing this Board decision to grant an effective date of June 18, 2010 for PTSD with sleep disorder and anxiety, the Agency of Original Jurisdiction (AOJ) will rate the PTSD, sleep disorder, and anxiety together and provide one rating based on all the social and occupational impairment and psychiatric symptoms, including for the period from June 18, 2010 to September 16, 2011, rendering moot the claims for service connection for sleep disorder and anxiety. In this case, separately awarding service connection for a sleep disorder and anxiety for the period from June 18, 2010 to September 16, 2011 would also constitute impermissible pyramiding as any separate rating for the separately service-connected psychiatric disorder or psychiatric symptom of sleep disorder or anxiety, which are part of and rated together with the PTSD, would necessarily be compensating the identical sleep impairment or anxiety twice. See 38 C.F.R. § 4.14 (directing that the evaluation of the same disability or the same manifestation under various diagnoses is to be avoided). Such a separate rating for separately service-connected sleep disorder or anxiety would also be contrary to the VA rating scheme for psychiatric disorders. The General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130 provides that all service-connected psychiatric disabilities and symptoms, including PTSD symptoms, are to be rated together based on the overall degrees of social and occupational impairment caused by all the symptoms and disorders. The General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130 under the 30 percent rating criteria also specifically contemplates symptoms of chronic sleep impairment and anxiety. See 38 C.F.R. § 4.130 (reflecting that a 30 percent rating 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) (emphasis added). In this case, there is no legal basis for separate and additional ratings for symptoms of sleep disorder and anxiety apart from the already service-connected PTSD, which already specifically includes sleep disorder and anxiety. Rating (compensating) such manifestations of a disability under multiple diagnoses would be prohibited pyramiding of compensation. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that a separate rating may be granted for a "distinct and separate" disability "when none of the symptomatology... is duplicative... or overlapping."); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double "compensation" for the same symptom or impairment is prohibited); Brady v. Brown, 4 Vet. App. 203, 206 (1993) (holding that a claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity"). Awarding service connection (with compensation) for a sleep disorder and anxiety for the period from June 18, 2010 to September 16, 2011 would be duplicative and overlapping as the same symptomatology used to rate (compensate) the PTSD that already includes symptoms of sleep disorder and anxiety. As such, and in this case, as the Board is granting the earliest possible effective date for the psychiatric disorder (an effective date of June 18, 2010), and because service-connected psychiatric disabilities and symptoms, including PTSD, sleep disorder, and anxiety symptoms, will be rated together for the entire period from June 18, 2010, including for the period from June 18, 2010 to September 16, 2011, where the award of separate service connection for sleep disorder and anxiety would constitute impermissible pyramiding, the claim for service connection sleep disorder and anxiety are rendered moot, and must be denied as a matter of law. 38 U.S.C. §§ 7104(a), 7105. 5. Rating GERD from February 22, 2011 to September 3, 2019 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). GERD is not among the listed conditions in the Rating Schedule. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board finds that GERD is most closely analogous to a hiatal hernia in terms of symptomatology and resulting disability pictures. A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms required for a 30 percent rating which are of lesser severity than is required for a 30 percent rating. A 30 percent rating requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain which is productive of considerable impairment of health. A 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single rating will be assigned under the diagnostic code which reflects the veteran's 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, Diagnostic Code 7346. The Veteran contends generally that a rating in excess of 10 percent for GERD is warranted for the initial rating period from February 22, 2011 to September 3, 2019. A January 2018 statement reflects the Veteran indicated that GERD manifested as dysphagia, pyrosis five times per week, regurgitation twice a month, chest pain twice a week, vomiting once per month, and "hoarseness" twice a month. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal from February 22, 2011 to September 3, 2019, the criteria for a rating in excess of 10 percent for GERD have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7. A March 2016 VA examination report and VA and private treatment records reflect epigastric distress, regurgitation, and sleep disturbance. See March 2016 VA examination report. While the January 2018 statement reflects the Veteran indicated that GERD symptoms had worsened in severity, the evidence of record, including the March 2016 VA examination, does not demonstrate that symptoms of GERD manifested as anemia, material weight loss, hematemesis, or melena, or other symptom combinations productive of considerable impairment of health, and the evidence does not otherwise show considerable impairment of health. See March 2016 VA examination reports, VA treatment records. The March 2016 VA examiner assessed that symptoms of GERD did not impact the ability to work. Further, the January 2018 statement reflects the Veteran did not mark an "X" on the sections labeled "material weight loss," "hematemesis," and/or "melena." In the absence of any subjective or objective findings such as hematemesis, material weight loss, or melena or other symptom combinations productive of considerable impairment of health associated with GERD, the Board finds that a rating excess of 10 percent is not warranted at any point during the rating period from February 22, 2011 to September 3, 2019. See 38 C.F.R. § 4.114, Diagnostic Code 7346. For these reasons, the weight of the competent and probative lay and medical evidence of record is against a rating in excess of 10 percent for GERD from February 22, 2011 to September 3, 2019. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Rating GERD from September 3, 2019 For the initial rating period on appeal from September 3, 2019, the Veteran is in receipt of the maximum 60 percent disability rating for GERD under 38 C.F.R. § 4.114, Diagnostic Code 7346. Diagnostic Code 7346 does not provide for a rating in excess of 60 percent and neither the Veteran nor the representative have even indicated why a higher rating is warranted. For the initial rating period from September 3, 2019, a higher disability rating is not legally possible under the facts of this case because the Veteran is in receipt of the maximum rating under See 38 C.F.R. § 4.114, Diagnostic Code 7346. REASONS FOR REMAND 7. Rating PTSD The Board's instant decision grants an effective date of June 18, 2010 for service connection for PTSD with sleep disorder and anxiety. In implementing the Board's grant of an earlier effective date, the AOJ will assign an initial disability rating from June 18, 2010. See 38 C.F.R. § 4.130. Thus, the issue of a higher initial rating for PTSD with sleep disorder and anxiety is inextricably intertwined with implementing the grant of an effective date of June 18, 2010 for service connection for PTSD with sleep disorder and anxiety and the assignment of an initial disability rating for the acquired psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matter is REMANDED for the following action: After implementing the Board's grant of an effective date of June 18, 2010 for service connection for PTSD with sleep disorder and anxiety and the assignment of an initial disability rating for the acquired psychiatric disorder, readjudicate the issue of a higher initial rating for PTSD with sleep disorder and anxiety. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.