Citation Nr: 0903359 Decision Date: 01/30/09 Archive Date: 02/09/09 DOCKET NO. 04-29 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for service- connected gastroesophageal reflux disease (GERD), currently evaluated as noncompensable. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney at Law ATTORNEY FOR THE BOARD Erin McGuire, Associate Counsel INTRODUCTION The veteran served on active duty from September 1963 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board previously denied this claim in a decision dated in June 2006. Pursuant to a Joint Motion to Remand, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision in an Order dated in November 2007. The Court remanded the case to the Board for readjudication consistent with the joint motion. The case has been returned to the Board for readjudication. FINDING OF FACT The veteran's service-connected GERD is aggravated by service-connected generalized anxiety syndrome and is characterized by symptoms of epigastric distress, dysphagia, pyrosis, regurgitation, and right arm and shoulder pain. CONCLUSION OF LAW The schedular criteria for an initial rating of 10 percent for service-connected GERD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.27, 4.114, Diagnostic Code 7346 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(a)-(c). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the requirements of the VCAA have been met and that VA has no further duty prior to Board adjudication. The RO originally provided VCAA notice to the veteran in correspondence dated in June 2004. In that letter, the RO advised the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. Although no longer required by the regulations, the RO also requested that the veteran send any evidence in his possession that pertained to the claim. See 73 Fed. Reg. 23353-23356 (April 30, 2008) (to be codified at 38 C.F.R. pt. 3) (amending 38 C.F.R. § 3.159(b)(1)). An additional VCAA-compliant letter was sent to the veteran in May 2005. That letter included an explanation of what the evidence must show to establish a higher disability rating. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Board also finds that the RO has satisfied VA's duty to assist. The RO obtained the veteran's service treatment records; VA medical center (VAMC) treatment records; and provided two VA examinations in June 2004 and November 2004, reports of which are contained in the claims file. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal, and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection for aggravation of GERD by service- connected anxiety was granted by the RO in an August 2004 rating decision. An initial noncompensable rating was assigned under 38 C.F.R. § 4.114, Diagnostic Code 7346, as analogous to hiatal hernia. The Board came to the same result in a June 2006 decision. The Court remanded this issue to the Board in November 2007. According to a November 2007 Joint Motion for Partial Remand, the case was remanded because the Board failed to provide an adequate statement of reasons or bases for its decision as to GERD. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When rating the veteran's service-connected disability, his entire medical history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In appeals concerning the assignment of an initial rating, however, as here, higher evaluations for separate periods based on the facts found during the appeal period are available. See Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 7346, the maximum schedular rating of 60 percent is warranted when there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. During the current appeal, the regulation pertinent to secondary service connection by aggravation was amended. Prior to October 10, 2006, when aggravation of a non-service- connected disability was proximately due to or the result of a service connected condition, such disability was compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (2005); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Effective October 10, 2006, a new paragraph was added to 38 C.F.R. § 3.310, clarifying the process by which such ratings are established. Specifically, when service connection is granted on a secondary basis, the rating specialist will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity from the current level. 38 C.F.R. § 3.310 (2008). A review of the regulatory comments make clear that, under the new regulation, it is the veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity, and that it is not enough merely that an examiner concludes that there is "aggravation." See 71 Fed. Reg. 52,745 (Sept. 7, 2006). However, in this case, the veteran's claim was filed prior to the effective date of the revised regulation (October 10, 2006). As such, the Board finds that the prior version of the regulation is more advantageous to the veteran and should be applied. When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Analysis VA treatment records dated from April 1998 to August 2005 showed that the first mention of GERD occurred in a June 2001 entry; Dr. A.D. listed GERD as a diagnosis and prescribed Zantac for treatment. A May 2002 record shows that the veteran was still taking Zantac at that time. A May 2003 entry shows the veteran requested more Zantac because it helped with his GERD, and it was noted that the veteran should continue on the medication as the occasion required. In his May 2004 claim, the veteran stated that he had been diagnosed with GERD and believed that the condition could have been caused by stress associated with his service- connected anxiety disorder. He claimed that his GERD symptoms worsened with the onset of anxiety or nervousness. In a report from a June 2004 VA examination, Dr. I.W. stated that he believed the veteran's GERD symptoms began in 2001, but the veteran never underwent testing. He observed that the veteran took Ranitidine twice a day. The veteran informed the doctor that without the medication he wakes up choking at night. He experienced no symptoms while taking the medication. The veteran reported increased symptoms upon eating spicy foods. He also stated that anxiety and depression caused abdominal discomfort about once a week, lasting from one to two hours. The veteran never had hernia surgery, malignancies or dysphagia (difficulty swallowing), but he experienced belching. Dr. I.W. stated that GERD does not cause many diseases, but in the veteran's case, it appeared that his GERD was exacerbated by anxiety and depression. The doctor explained that GERD did not interfere with the veteran's daily work and caused no functional impairment. In the September 2004 notice of disagreement, the veteran's representative stated that the veteran's GERD caused daily epigastric distress, with frequent dysphagia during the day and pyrosis (heartburn) at night. The notice reported that the veteran suffered from daily right arm and shoulder pain. A November 2004 VA examination was scheduled to reconcile symptoms reported by the veteran's representative and symptoms reported by the veteran during his June 2004 VA examination. A report of the November 2004 examination shows that the veteran believed his GERD symptoms had worsened since they began several years prior to the examination. The veteran stated that increased medication resolved most of the symptoms. For residual symptoms, the veteran said that he took his wife's antacids at bedtime. In addition to previously recorded symptoms, the veteran reported occasionally choking during the day when eating too quickly and choking during the night, which interrupted sleep twice a week, at maximum. The veteran did not understand a question concerning heartburn and stated that his only symptom was acid reflux. The veteran told the examiner that the condition had not adversely affected his daily activities or his occupation. In a December 2004 addendum, the VA examiner reported that the upper gastrointestinal series failed to confirm a diagnosis. The examiner amended the diagnosis to dyspepsia and stated there was insufficient evidence at present to warrant a diagnosis of any acute or chronic disorder or residuals of GERD. In his January 2005 Substantive Appeal, the veteran reiterated the complaints noted in the September 2004 Notice of Disagreement. The veteran maintained that he experienced regurgitation, dysphagia, epigastric distress, and shoulder pain. A VA treatment noted dated in January 2005 showed that the veteran complained of right arm and shoulder pain. He indicated that he felt as if the pain was in the muscle and joint. Active outpatient medications included Ranitidine taken daily for heartburn and acid reflux. The July 2005 VA general examination report showed that the veteran believed the medication for his GERD helped, although he still experienced pyrosis about once a week, sometimes at night, even when taking medication. As previously stated, the Board finds it proper to apply the prior version of 38 C.F.R. § 3.310. As such, the veteran did not have the burden of proving a baseline level of GERD symptoms for the purpose of comparing pre-anxiety and post- anxiety GERD severity. Here, the Board will not make a baseline determination. The onset of GERD was not noted until June 2001, over three years after the January 1998 grant of service connection for anxiety. In his original claim for service connection of GERD, the veteran stated that the condition could have been caused by anxiety, not just aggravated by it. The first record that showed a discussion of GERD-related symptoms was the June 2004 examination report, where the veteran reported experiencing abdominal discomfort caused by anxiety and depression approximately once per week. Here, the Board finds that it is not possible to differentiate the veteran's pre-anxiety and post-anxiety symptoms. Therefore, the Board will consider a compensable rating based on all of the GERD-related symptoms contained in the record. The competent medical evidence of record showed symptoms of choking, epigastric distress, dysphagia, pyrosis, regurgitation, and right arm and shoulder pain. Medication helped to alleviate symptoms, but the symptoms still occur frequently, with abdominal pain associated with anxiety and depression occurring approximately once per week. These symptoms are reflective of the symptomatology associated with a 10 percent rating under Diagnostic Code 7346. The veteran's symptoms are not severe enough to warrant a 30 percent rating under Diagnostic Code 7346. His symptoms caused no functional impairment or considerable impairment of health. The Board concludes that the veteran's GERD has not met the criteria for a rating higher than 10 percent for any period during the appeal. Accordingly, a staged rating is not in order, and a 10 percent rating is appropriate for the duration of the veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The evidence does not indicate that the veteran's GERD has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation) or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Therefore, referral of this case for extra-schedular consideration is not warranted. See Floyd v. Brownž 9 Vet. App. 88, 95 (1996); Bagwell v. Brownž 9 Vet. App. 337 (1996). ORDER Entitlement to a 10 percent rating for service-connected GERD is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs