Citation Nr: 1648526	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  10-18 290A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for hypertension.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to an initial compensable disability rating for service-connected gastroesophageal reflux disorder (GERD) prior to May 23, 2008.

5.  Entitlement to an initial disability rating in excess of 10 percent for service-connected GERD beginning May 23, 2008.

6.  Entitlement to a higher combined disability rating based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (2016).


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

E. F. Brandau, Associate Counsel


INTRODUCTION

The Veteran has active duty for training in the United States Army from February 1981 to June 1981, and active duty service from February 2003 to September 2003, and January 2005 to December 2006, with additional time served in the Army National Guard.  The Veteran served in Afghanistan.

These matters come before the Board of Veterans' Appeals (Board) from January 2008 and December 2008 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2016 the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference.  A transcript of the hearing was prepared and added to the record.  

The Veteran was initially granted entitlement to service connection for GERD in a January 2008 rating decision, and he was assigned a noncompensable disability rating.  In a December 2008 rating decision, the RO increased the disability rating to 10 percent for GERD, effective May 23, 2008.  Because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status, and the Board has re-characterized the issue as shown on the title page.  See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

The Board has expanded the Veteran's claim for service connection for PTSD to include consideration of whether service connection is warranted for any acquired psychiatric disability.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The probative, competent evidence is against a finding that the Veteran has hypertension.

2.  The probative, competent evidence is against a finding that the Veteran has a hearing loss disability for VA purposes.

3.  Throughout the pendency of the appeal, the Veteran's GERD has at times been manifested by dysphagia with recurrent epigastric distress and pyrosis; there is no indication that it resulted in substernal arm or shoulder pain or a considerable impairment of health.

4.  Throughout the rating period on appeal, the Veteran has been service-connected for disabilities which have been determined to be compensable, to include left medial tibial plateau fracture (10 percent); tinnitus (10 percent); hypothyroidism (10 percent); and GERD (10 percent).



CONCLUSIONS OF LAW

1.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2016).

3.  The criteria for an initial disability rating of 10 percent for GERD, but no higher, have been met prior to May 23, 2008.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346 (2016).

4.  Beginning May 23, 2008, the criteria for a disability rating in excess of 10 percent for the Veteran's service-connected GERD have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7346.

5.  The criteria for a higher combined evaluation on the basis of having multiple noncompensable service-connected disabilities is denied as a matter of law.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.324.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016).

VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. § 3.159(b).  Compliant notice was provided in February 2007 and July 2007.

The Board notes that the Veteran's increased rating claim stems from his disagreement with the initial evaluations following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

In addition, the Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records.  VA examinations have been conducted and opinions obtained.  

The Veteran was also afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2016) requires that the VLJ who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Analysis

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
	
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disability, such as sensorineural hearing loss or hypertension, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).  

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Hypertension

The Veteran essentially contends that he has high blood pressure that began during service.  Specifically, he reported finding out that he had elevated blood pressure while deployed, and he asserted that it has worsened since separation.  

Service treatment records show that the Veteran's blood pressure was checked several times during service and was elevated at times.  However, no diagnosis of hypertension was rendered during service.  Of note, the Veteran had a five-day blood pressure check in May 2005; however, the readings did not indicate the presence of hypertension.  In an October 2005 report of medical history, the Veteran reported that his blood pressure was up and down.  On examination at that time his blood pressure was 114/64.  In December 2005, elevated blood pressure was noted.  Blood pressure readings at that time were 134/90 and 154/90.  Hypertension was not diagnosed.  In an August 2006 report of medical history, the Veteran reported having had borderline high blood pressure.  At the time his blood pressure was 138/87.  

The Veteran was afforded a VA examination in December 2007.  At the time he denied having hypertension but reported that his blood pressure fluctuated.  He reported that he was not taking any medication for this disability.  Blood pressure readings during the examination were 125/81, 135/83, and 139/92.  The examiner diagnosed elevated blood pressure.  While hypertension was noted as a problem associated with the diagnosis, hypertension was not diagnosed and the blood pressure readings do not represent hypertension.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2016).  

There is no other competent evidence of record indicating that the Veteran has been diagnosed with hypertension.  The Veteran testified that he is taking blood pressure medication and that he has a blood pressure monitor.  The Board held the record open for the Veteran to submit evidence related to this, or to submit authorization for VA to obtain relevant records; however, no evidence or authorization was submitted to substantiate this assertion.  VA cannot obtain private records without the Veteran's assistance.  Given the time allowed for submission of evidence the Board finds that VA's duty to assist has been fulfilled.  

In summary, the medical evidence shows elevated blood pressure readings but not hypertension.  Elevated blood pressure is not considered a disability but a symptom of disability.  With limited exception, service connection cannot be awarded without a currently diagnosed disability.  See 38 C.F.R. §§ 3.303, 3.317 (2016); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this regard, while the Veteran's DD-214 indicates service in Iraq, at his 2016 VA PTSD examination the Veteran reported that he actually served in Afghanistan.  The service records also support a finding of service in Afghanistan rather than Iraq.  As such, regulations pertinent to service in southwest Asia are not for application in this case.  See 38 C.F.R. § 3.317.   

While the Veteran may believe that he has hypertension, as a lay person the Veteran has not shown that he has specialized training sufficient to render such a diagnosis.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  The diagnosis and etiology of hypertension are matters not capable of lay observation, and require medical expertise to determine.  The Veteran is capable of relaying observed blood pressure readings, but has not identified findings that would represent hypertension nor has he relayed that he has been formally diagnosed with hypertension.  Thus, the Veteran's statements do not represent competent evidence of a diagnosis of hypertension.  

The Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported high blood pressure; and, in the absence of proof of a present disability, there can be no valid claim.  Brammer, 3 Vet. App. 223 at 225.  There is also no competent evidence of hypertension at any point during the claims period or shortly before.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Accordingly, the Veteran's claim for entitlement to service connection for hypertension is denied.

Bilateral hearing loss

The Veteran has asserted that he has hearing loss due to acoustic trauma in service.  Specifically he reported that when he was working in the engineering unit he was exposed to noises from jackhammers and impact tools, as well as other heavy equipment for 18 years during his military career.  The Board concedes noise exposure in service due to the Veteran's military occupational specialty of crane operator and construction equipment supervisor.  

For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

In December 2007 the Veteran underwent VA examination in connection with his claim.  The examiner reviewed the claims file and medical history, and noted the Veteran's in-service noise exposure.  Puretone threshold and Maryland CNC speech recognitions tests were also conducted.

In December 2007, puretone thresholds, in decibles, were as follows: 

HERTZ

500
1000
2000
3000
4000
RIGHT
10
10
0
10
30
LEFT
5
10
5
20
30

The Veteran's speech recognition ability was 96 percent bilaterally.  The VA examiner indicated that these test results reflected normal hearing acuity bilaterally.

Additionally, the Board has reviewed the Veteran's VA treatment records and service treatment records, which contain other audiological testing conducted during the Veteran's active duty.  Upon review, while the Veteran does have  conceded exposure to acoustic trauma, no audiological examination of record conducted at any time demonstrates an auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz of 40 decibels or greater; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test less than 94 percent.  In the relevant frequencies auditory thresholds, at worst, were 30 decibels in the left ear.  No more than two auditory thresholds were above 26 decibels at any time.  

The evidence in this case reflects that the Veteran does not currently have hearing loss disability for VA purposes.  As described, audiometric testing revealed that the Veteran had no auditory thresholds at any relevant frequency above 30 decibels, that he had no more than two auditory thresholds above 26 decibels at any given time, and that his Maryland CNC tests reflected scores of at least 96 percent in the left ear.  These results do not reflect that the Veteran has a left ear hearing loss disability as established by 38 C.F.R. § 3.385.  The Veteran has not challenged the accuracy of any of the audiometric results and has not submitted any additional evidence in support of his claim that his reported hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385.  While the Veteran is competent to report what comes to him through his senses, including diminished hearing capacity, he is not competent to assess that he has a hearing loss disability for VA purposes.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Such determination may only be made by audiometric testing and CNC Word List speech recognition testing.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported hearing loss; and, in the absence of proof of a present disability, there can be no valid claim.  Brammer, 3 Vet. App. at 225.  There is also no competent evidence of a hearing loss disability for VA purposes at any point during the claims period or shortly before.  See McClain, 21 Vet. App. at 321; see also Romanowsky, 26 Vet. App. 289.  Accordingly, the Veteran's claim for entitlement to service connection for bilateral hearing loss is denied.

Entitlement to Higher Combined Rating

The Veteran has contended that since he has multiple noncompensable service-connected disabilities, their combination should equate to 10 percent, giving him a higher combined disability rating.  Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating.  38 C.F.R. § 3.324.  The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of noncompensable service-connected disabilities.  As such, once a compensable evaluation for any service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot.  See Butts v. Brown, 5 Vet. App. 532, 541 (1993).  

In the instant case, service connection has been awarded for left medial tibial plateau fracture, tinnitus, hypothyroidism, and GERD.  All of these service-connected disabilities have been assigned a 10 percent disability rating throughout the duration of the appeal.  

The Board finds that the Veteran's claim must be denied as he has several compensable 10 percent disability ratings.  Butts, 5 Vet. App. at 541.  In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that where the law and not the evidence is dispositive, the claim should be denied due to the lack of entitlement under the law.  Therefore, because the Veteran has at least one compensable service-connected disability, he is not legally entitled to another 10 percent disability rating which would lead to a higher combined evaluation pursuant to 38 U.S.C.A. § 3.324.  Thus, the Veteran's claim of entitlement to a higher combined disability rating based on multiple noncompensable service-connected disabilities must be denied as a matter of law.

Increased Rating  

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2016); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2016).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505.

There is no specific diagnostic code for GERD.  It is therefore rated under the diagnostic code for a hiatal hernia, based on similarity of symptoms.  In this regard, 38 C.F.R. § 4.20 (2016) allows for analogous ratings of an "unlisted condition" under a closely related disease or injury in which not only the functions affected  but the anatomical localization and symptoms are closely analogous.  However,      it further provides that "[c]onjectural analogies will be avoided, as will the use       of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin."  Id. 

Under 38 C.F.R. § 4.114, Diagnostic Code 7346, a 10 percent disability rating is warranted if the Veteran experiences two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent  disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis (vomiting of blood) or melena (black, tarry feces associated with gastrointestinal hemorrhage) with moderate anemia (a decreased number of red blood cells); or other symptom combinations productive of severe impairment of health.  

As noted, the Veteran was granted entitlement to service connection for GERD in a January 2008 rating decision, and he was assigned a noncompensable rating as of December 17, 2006.  A December 2008 rating decision increased the Veteran's disability rating to 10 percent as of May 23, 2008.  At all relevant times, the Veteran has argued that he is entitled to a higher disability rating.  

In December 2007 the Veteran first underwent VA examination in connection with his claim, and at the time he reported having stomach problems, specifically indigestion, since 2005.  He reported taking the medications protonix and omeprazole for his disability, and he indicated that he was doing well with the medication.  He did report some heartburn.  During the physical examination the Veteran's abdomen appeared normal, and he had no evidence of guarding or tenderness.  The Veteran was diagnosed with GERD: controlled with medication.  The VA examiner noted that the Veteran had stomach problems but that there were no significant effects on the Veteran's usual occupation or daily activities.  

In his written statements, the Veteran asserted that he had difficulties with reflux, swallowing, coughing, and heartburn; he also asserted that he had shoulder pain associated with his GERD.  The Veteran reported that he had to exercise caution while eating to avoid choking, and that he felt as though he was swallowing a big lump in the throat.  Lastly, the Veteran reported that he was encouraged to control his diet, elevate his bed, and take additional preventatives to get his disability under control.  

In June 2008 the Veteran again underwent VA examination in connection with his claim, and at the time the VA examiner reflected that the Veteran had an esophagoscopy two months prior that showed evidence of lower esophageal inflammation.  The Veteran reported that he had dysphagia to a variety of things, including pills; he asserted that he had to chew his food carefully to avoid choking, and at the time of the examination his voice was raspy with a dry cough.  The Veteran reported that he had burning and sour regurgitation when belching; he indicated that he was taking pantoprazole medication, but that he usually had to supplement that with over-the-counter Tums medication.  The Veteran denied having any epigastric pain, substernal pain, or arm pain, melena, or hematemesis, but he confirmed that he had reflux and nausea after eating.  During the physical examination the Veteran's abdomen was not tender, and he was deemed mildly overweight.  He was diagnosed with hiatal hernia with symptoms of dysphagia and some regurgitation despite medications.  

In October 2008 the Veteran had a barium swallow and at the time the treatment provider indicated that the Veteran had mild GERD with a tiny sliding hiatal hernia and minimal esophageal dysmotility.  On physical examination the Veteran was noted to have mild decreased laryngeal crepitus, and mild erythema and mucosal redundancy in the interarytenoid area.  He was also noted to have a mass effect of the left posterior hypopharyngeal wall into the left piriform sinus.  The Veteran was noted to have chronic globus sensation with GERD, currently with minimal relief with lansoprazole medication.  The treatment provider noted that despite a normal barium swallow, his physical examination findings suggested that a neck CT scan was warranted.  The treatment provider increased the Veteran's medication.  

When the Veteran followed up for treatment in April 2010, he reported that his protonix and ranitidine medication helped somewhat, but that he continued to have occasional symptoms.  The Veteran also asserted having intermittent hoarseness and intermittent dysphagia with some foods, although he had not lost any weight.  The Veteran had a stroboscopy which showed mild GERD changes with some redness of the vocal cords, and a small amount of redundant mucosa in the postcricoid area.  

More recently, in February 2016, the Veteran again underwent VA examination in connection with his claim.  At the time he was diagnosed with hiatal hernia.  The Veteran reported that he had acid reflux and choked on stringy foods and certain solid foods.  He reported taking continuous medication for his disability, and that he had consistent symptoms of dysphagia and reflux.  He denied having any esophageal stricture, spasm of esophagus, or acquired diverticulum of the esophagus.  There were no other pertinent physical findings, complications, conditions, signs or symptoms related to his disability.  The VA examiner noted that the Veteran's esophageal conditions would not impact his ability to work.  

Following a review of the evidence of record, the Board finds that the Veteran's GERD warrants a rating of 10 percent throughout the period on appeal.  While the December 2007 VA examination noted only indigestion and stomach problems as a symptom, the Veteran has complained of trouble swallowing (dysphagia) throughout the period on appeal.  At other times, the Veteran has also been noted to experience persistent epigastric distress and heartburn; he reported symptoms despite medication, and he even admitted to supplementing his medication with over-the-counter Tums.  He reported having reflux consistently after eating, and he asserted that he had been told that his shoulder pain may have been related to his GERD.  As the Veteran has experienced at least two of the symptoms of the 30 percent criteria but of less severity (i.e., not productive of considerable impairment of health), the Board concludes the Veteran's symptoms are best described by the criteria for a 10 percent disability rating.  

The criteria for a higher disability rating have not been met.  The Veteran has never reported nor does the evidence reflect any vomiting, material weight loss or anemia, or that any symptoms were productive of considerable impairment of health.  The Veteran asserted that he had been told that his shoulder impairment may have been related to GERD, but this is not noted in the treatment records such that it would cause considerable impairment of health.  The Board notes that in December 2007 the VA examiner noted no effects on daily activities.  The February 2016 VA examiner opined that the Veteran's GERD would not affect his ability to work, and the Veteran has maintained employment during the course of the appeal.  The Board recognizes there can be a difference between impairment of health and occupational impairment; however, in this case neither is shown to the degree contemplated by the next higher rating.  Consequently, the criteria for the next higher, 30 percent, rating are not met or approximated and a rating for GERD in excess of 10 percent is not warranted.  Treatment notes are consistent with this finding.

Other Considerations

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned for this period inadequate.  As it pertains to the Veteran's service-connected GERD, the Board notes that it is evaluated as an endocrine disability, the criteria of which is found by the Board to specifically contemplate the level of occupational impairment caused by this disability.  Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.114, Diagnostic Code 7346.  During the period on appeal, the Veteran's GERD manifested with dysphagia with epigastric distress, reflux, and heartburn.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the evaluation assigned for this period.  The Rating Schedule includes consideration of the overall impairment of health as well as the listed symptoms.    

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  The Court, in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities.  Neither scenario applies to the instant case.  

The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  

In this case, the Veteran has never asserted that he is unable to work due to his service-connected GERD.  In fact, the evidence suggests that the Veteran has been employed during the appeal period.  Accordingly, no action pursuant to Rice, 22 Vet. App. 447 is necessary.  






ORDER

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to a 10 percent disability rating, but no higher, for service-connected GERD prior to May 23, 2008 is granted.

Entitlement to an initial disability rating in excess of 10 percent for service-connected GERD beginning May 23, 2008 is denied.

Entitlement to a higher combined disability rating based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 is denied.


REMAND

Regrettably, a remand is necessary for proper development of the issue of entitlement to service connection for a psychiatric disorder, to include PTSD.  

In November 2015, the Veteran underwent VA examination in connection with his claim.  At the time the VA examiner noted that the Veteran had a history of mental health treatment from 2007 to 2009, and received diagnoses of major depressive disorder, generalized anxiety disorder, and PTSD.  The Board also notes that the Veteran had a diagnosis of panic disorder which was not mentioned in the VA examination report.  Nonetheless, the VA examiner found that the Veteran's symptoms did not meet the criteria for PTSD, and that the Veteran did not have a mental disorder.  The VA examiner concluded that the Veteran reported a few symptoms of PTSD, but that he did not meet the full diagnostic criteria for this diagnosis and that his symptoms were not causing significant impairments in functioning to warrant a psychiatric diagnosis.  

As no opinion has been obtained regarding whether the mental health diagnoses of record are related to service, another VA examination is necessary.  See McClain, 21 Vet. App. at 321.  In addition, as PTSD has been diagnosed by a VA psychologist, efforts should be undertaken to verify the Veteran's claimed stressor.  

While service personnel records have been obtained there is some indication that they are not complete.  The available records do not include the Veteran's units of assignment nor do they appear to cover his complete period of active duty ending in December 2006.  Of note, a 2007 Defense Personnel Records Image Retrieval System response suggested that another request for personnel records was necessary.  On remand, the AOJ should ensure that all service personnel records are associated with the file.  

Additionally, the Veteran receives continuous treatment through VA.  On remand, the AOJ should obtain and associate with the file VA treatment records dated from February 2016 to present.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the record the Veteran's complete service personnel records.  

2.  Obtain and associate with the record relevant VA treatment records for the Veteran dated from February 2016 to present.  All actions to obtain the requested records should be fully documented in the claims file.    

3.  With any needed assistance from the Veteran, attempt to verify his claimed in-service stressor(s), to include witnessing a civilian being shot in Afghanistan.  

4.  After records development is completed, schedule the Veteran for a VA mental health examination to determine the nature of any psychiatric disability present during the appeal period, and to obtain an opinion as to whether such is possibly related to service.  The claim file should be made available to and be reviewed by the examiner in conjunction with the examination.  All necessary tests should be conducted and the results reported.

The examiner should elicit a full history from the Veteran and consider the lay statements of record.  It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  

Following review of the claims file and examination of the Veteran, the examiner should address the following:

(a) What mental health diagnoses are appropriate since the Veteran's separation from service in December 2006?  If the examiner finds that any of the diagnoses listed in the VA records (PTSD, major depressive disorder, panic disorder, anxiety) were not actually present during this period an explanation should be provided.   
(b) If PTSD is diagnosed, any stressful event resulting in the diagnoses should be listed.  
(c) For any other psychiatric disability diagnosed during the period, to specifically include major depressive disorder, panic disorder, and anxiety, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder arose during service or is otherwise related to service.  Even if diagnoses of major depressive disorder, panic disorder, or anxiety are not warranted after examination the examiner should still offer the requested opinion as these disorders were diagnosed during the relevant period (unless the examiner has clearly explained why such disorders were not present since December 2006).  

A rationale for all opinions expressed should be provided.

5.  After all development has been completed, re-adjudicate the claim of entitlement to service connection for an acquired psychiatric disorder.  If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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