Citation Nr: 22017517 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-24 495A DATE: March 25, 2022 ORDER From September 17, 2010, the Agency of Original Jurisdiction's (AOJ) award of a 30 percent rating for GERD in a December 6, 2021 rating decision is confirmed. REMANDED From September 17, 2010, entitlement to a rating greater than 30 percent for GERD is remanded. From July 1, 2015, entitlement to a rating greater than 10 percent for the residuals of a right upper lobe and frontal lobe stroke is remanded. FINDINGS OF FACT 1. The AOJ granted a 30 percent rating for GERD, effective September 17, 2010, in a December 6, 2021 rating decision. 2. The AOJ's award, while premature, is confirmed as the Veteran's GERD disability has resulted in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by non-cardiac chest pain, shoulder pain, and mid-sternum pain productive of considerable impairment of health since September 17, 2010. CONCLUSION OF LAW From September 17, 2010, the criteria for an initial 30 percent rating for GERD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service September 1969 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of April 2012 (GERD) and April 2015 (stroke) of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2019, the Board: a) Denied a rating greater than 30 percent for mitral valve prolapse b) Denied a rating greater than 10 percent for the residuals of a right upper lobe and frontal lobe stroke c) Denied a rating greater than 10 percent for GERD d) Remanded entitlement to a rating greater than 10 percent for a larynx disability e) Remanded entitlement to service connection for asthma f) Remanded entitlement to service connection for chronic obstructive pulmonary disorder g) Remanded entitlement to service connection for sleep apnea The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran limited his appeal to the residuals of a right upper lobe and frontal lobe stroke and the GERD issues, i.e., issue (a) and (c) above. In October 2020, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Court vacated the Board's decision regarding the residuals of a right upper lobe and frontal lobe stroke and the GERD issues. It remanded the matter to the Board for further proceedings consistent with the JMPR. In August 2021, the AOJ service connected the Veteran's asthma, chronic obstructive pulmonary disorder, and sleep apnea. These were full grants of the benefits sought, so these issues are not on appeal. In the same rating decision, the AOJ increased the Veteran rating for the larynx disability to 30 percent disabling, effective June 17, 2021. In September 2021, the AOJ issued a Supplemental Statement of the Case for the larynx disability. On December 1, 2021, the Board granted a 30 percent rating for the larynx disability prior to June 17, 2021, and it denied a rating greater than 30 percent thereafter. On December 6, 2021, the AOJ issued a rating decision. In the "Introduction" section of the rating decision, the AOJ stated: The Board of Veterans Appeals made their decision on your appeal on December 1, 2021. We have implemented their decision based on the evidence listed below. In the "Reasons for Decision" section of the rating decision, the AOJ stated: The Board of Veterans' Appeals (BVA) has determined that entitlement to an increased evaluation for gastroesophageal reflux disease (GERD) is warranted. Therefore, an evaluation of 30 percent disability is granted, effective September 17, 2010, the date entitlement arose. (38 C.F.R. § 3.400) Please refer to your BVA decision for the reasons and bases of this decision. The AOJ erred in its implementation, increasing the Veteran's GERD disability instead of the larynx disability as directed by the Board's December 2021 decision. Upon learning of this error, the Board notified the AOJ. In turn, the AOJ issued a rating decision on February 25, 2022. In the "Introduction" section of the rating decision, the AOJ stated: The Board of Veterans Appeals made their decision on your appeal on December 1, 2021. We have implemented their decision based on the evidence listed below. In the "Reasons for Decision" section of the rating decision, the AOJ addressed two issues. For GERD, it stated: Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. There was a clear and unmistakable error noted in the failure to assign the correct evaluation for your service-connected gastroesophageal reflux disease (GERD). The rating decision dated December 6, 2021, incorrectly assigned a 30 percent evaluation for your gastroesophageal reflux disease (GERD) when the evidence clearly showed a lesser evaluation was warranted. The rating decision dated December 6, 2021 committed a clear and unmistakable error in assigning an effective date of September 17, 2020 for your service-connected gastroesophageal reflux disease (GERD), BVA Decision dated December 2, 2021 granted entitlement to a disability evaluation of 30 percent for laryngopharyngeal reflux associated with gastroesophageal reflux disease (GERD) DC 7346 prior to June 17, 2021. Therefore, we are correcting our clear and unmistakable error for our previous rating decision and assigning entitlement to an earlier effective date for your service-connected laryngopharyngeal reflux associated with gastroesophageal reflux disease (GERD) DC 6516. (38 C.F.R. § 3.103) As the evidence clearly shows that a 30 percent evaluation is not warranted, we are correcting the prior decision and proposing to decrease the current evaluation to 10 percent. (38 C.F.R. § 3.103) Until the period of due process is final, your combined overall evaluation will show as 80 percent disabling effective September 17, 2010. If this proposal is implemented, your total combined evaluation will remain 70 percent disabling effective September 17, 2010. For the larynx disability, it stated: Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. The rating decision dated December 6, 2021 committed a clear and unmistakable error in assigning an effective date of September 17, 2020 for your service-connected gastroesophageal reflux disease (GERD), BVA Decision dated December 2, 2021 granted entitlement to a disability evaluation of 30 percent for laryngopharyngeal reflux associated with gastroesophageal reflux disease (GERD) DC 7346 prior to June 17, 2021. Therefore, we are correcting our clear and unmistakable error for our previous rating decision and assigning entitlement to an earlier effective date for your service-connected laryngopharyngeal reflux associated with gastroesophageal reflux disease (GERD) DC 6516. As the evidence clearly shows that your claim was granted in error, we have corrected the prior decision and assigned a 30 percent disabling evaluation for your laryngopharyngeal reflux associated with gastroesophageal reflux disease (GERD) with an earlier effective date of September 17, 2010. (38 C.F.R. § 3.400) This rating decision does implement the December 1, 2021 BVA grant for the laryngopharyngeal reflux and proposes reduction of the GERD from 30 percent disabling to 10 percent disabling. If this proposal is implemented, your total combined evaluation will remain 60 percent disabling effective September 17, 2010. On March 7, 2022, the AOJ, as foreshadowed in the February 25, 2022 rating decision, proposed to reduce the Veteran's GERD rating from 30 percent to 10 percent, effective September 17, 2010. Issue 1: GERD rating Increased Ratings 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. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Merits As explained above, a) the Board denied a rating greater than 10 percent for GERD in January 2019, and b) the Court vacated this decision in October 2020. The JMPR, for this issue, stated: The Board failed to provide adequate reasons or bases regarding relevant evidence of record. Under 38 C.F.R. § 4.114, DC 7346, a 30% disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, and a 60% rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. In August 2012, Appellant's private physician, Dr. Amanda Zaide, stated that Appellant's GERD resulted in dysphagia, pyrosis, regurgitation, non-cardiac chest pain, shoulder pain, and mid-sternum pain. (R. at 4347 (4345-50)). Dr. Zaide also noted that Appellant had numerous visits to the emergency room because of these symptoms, only to find out that he was not having a heart attack. Id. However, the Board failed to discuss this evidence and whether a higher rating for GERD is warranted due to these symptoms. (R. at 20- 23 (10-28)). Accordingly, on remand the Board shall address Dr. Zaide's reports on Appellant's GERD symptoms. Dr. Zaide's letter, as it pertains to GERD, stated: [The Veteran's] persistent and recurring epigastric distress is almost always accompanied by dysphagia, pyrosis and regurgitation and sometimes shoulder pain. Because of these occurrences, he had numerous visits to the emergency room only to find out he was not having heart attack. The non-cardiac chest pain musculoskeletal pain of left shoulder and mid sternum are all symptoms and very consistent with gastroesophageal reflux disease. All his Emergency Room visits were anxiety driven to insure negative for heart attack. Considering the JMPR and Dr. Zaide's opinion, the Board would have awarded a 30 percent rating for GERD, while remanding to obtain the emergency room records cited in the JMPR. However, because the AOJ has already awarded a 30 percent rating, the Board finds it is most efficient to confirm that award. REASONS FOR REMAND Remand is warranted for additional development. Incomplete Documents There are two instances of incomplete documents. First, on October 7, 2020, the Veteran submitted a document labeled as "Correspondence" in his claims file. This document, according to the pagination in the upper right-hand corner of the document and the facsimile coversheet, was eight pages in length. However, the document in the claims file contains only three of the eight pages. The Board requested that the document be rescanned to the claims file but the complete document is still not in the file. There is a document listed as "Email Correspondence" that was uploaded to the claims file on July 14, 2021. In it, a VA employee requested that the St. Petersburg, Florida VA Regional Office "assist[] with the rescanning of a document." The employee, based on the email, had attached the document to the email. However, it is unclear to the Board what the attached document was, and there is no indication that the St. Petersburg, Florida VA Regional Office rescanned the document and uploaded it into the claims file. Remand is necessary to attempt to clarify and obtain the missing pages. Issue 2: From September 17, 2010, entitlement to a rating greater than 30 percent for GERD As cited in the JMPR, emergency room records from the Veteran's treatment for GERD may bear on his appeal. To ensure VA has all records the Veteran wants it to consider, it will remand to attempt to obtain these records. Issue 3: Entitlement to a rating greater than 10 percent for the residuals of a right upper lobe and frontal lobe stroke For this issue, the JMPR states: The Board provided inadequate reasons or bases regarding 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8009. In the decision on appeal, the Board stated that Appellant was in receipt of the maximum rating allowed under DC 8009 because he had a 10% evaluation. (R. at 20 (10- 28). However, DC 8009 states that "rate residuals, thereafter, minimum" 10%. The prefatory content of 38 C.F.R. § 4.124a also states that the "disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function." Thus, the Board failed to provide adequate reasons or bases regarding entitlement to a higher rating under DC 8009, and remand is warranted for the Board to properly apply section 4.124a. The Board also failed to address Appellant's lay evidence regarding his stroke symptoms. In his May 2016 substantive appeal, Appellant indicated that his stroke residuals resulted in memory loss, disorientation, issues with comprehension and expression, incontinence, erectile dysfunction, and impairment of his ability to function. (R. at 2226-27 (2223- 29)). In May 2015, Appellant submitted a checklist that identified things he could do before the stroke and could no longer do after the stroke. (R. at 2802-03). He reported that he was no longer capable of planning activities or trips, that he would frequently have to ask people to repeat statements before he could understand them, that he often would slur his words and need to repeat himself, and that he constantly experienced headaches. Id. Appellant's spouse submitted a statement in May 2015 stating that Appellant was unable to remember simple instructions, that even if she wrote down the instructions, he would still confuse them, and that he would forget how to navigate while driving. (R. at 2804). The Board was required to discuss the lay evidence noted above, and remand is warranted for the Board to address the evidence. The Board also failed to address an argument raised by Appellant that the April 2016 Department of Veterans Affairs (VA) examination is inadequate. (R. at 2393-2402). In his May 2016 Notice of Disagreement (NOD), Appellant provided a list of questions that he stated the examiner had answered incorrectly during the examination. (R. at 2251-52). In his May 2016 substantive appeal to the Board, he also stated that he was not involved in answering the questions during the VA examination and the examiner answered most of those questions on her own. (R. at 2225 (2223- 29)). The Board's discussion of the April 2016 VA examination report does not include any discussion of Appellant's contentions of error and remand is warranted for such discussion. See Robinson v. Peake, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that the Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record). The Board also failed to address Appellant's argument that he was entitled to a rating under 38 C.F.R. § 4.130. In his May 2016 substantive appeal, Appellant argued that he had "Vascular Dementia as a result of the stroke." (R. at 2226 (2223-29)). He indicated that he had loss of memory, was disoriented, had issues with comprehension and expression, and that he was occupationally and socially impaired. The Board failed to address this argument and remand is warranted for it to do so. Robinson, 21 Vet.App. at 553. The Board will remand for the development highlighted in the JMPR. The matters are REMANDED for the following action: 1. Ask the Veteran to resubmit the 8-page document he submitted on October 7, 2020. 2. Identify the document that the VA employee on July 14, 2021 requested that the St. Petersburg, Florida VA Regional Office rescan and add to the claims file. Document the completion of this task in the claims file. 3. Obtain updated VA and private treatment records, to include the emergency room records discussed in Dr. Zaide's August 21, 2012 private opinion. This document is labeled as "Medical Treatment Record Government Facility" in the claims file, and it was uploaded on September 26, 2012. 4. Schedule the Veteran for a VA examination to determine the nature and severity of his residuals of a right upper lobe and frontal lobe stroke. The examiner must review the claims file, to include this Remand. In addition to the customary examination, the examiner must address the following evidence: a) In his May 2016 substantive appeal, the Veteran indicated that his stroke residuals resulted in memory loss, disorientation, issues with comprehension and expression, incontinence, erectile dysfunction, and impairment of his ability to function. b) In May 2015, the Veteran submitted a checklist that identified things he could do before the stroke and could no longer do after the stroke. He reported that he was no longer capable of planning activities or trips, that he would frequently have to ask people to repeat statements before he could understand them, that he often would slur his words and need to repeat himself, and that he constantly experienced headaches. c) In May 2015, the Veteran's spouse submitted a statement stating that the Veteran was unable to remember simple instructions, that even if she wrote down the instructions, he would still confuse them, and that he would forget how to navigate while driving. d) In his May 2016 substantive appeal, the Veteran argued that he had "Vascular Dementia as a result of the stroke." He indicated that he had loss of memory, was disoriented, had issues with comprehension and expression, and that he was occupationally and socially impaired. A complete rationale must be provided for the opinions rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.