Citation Nr: 18132290
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 18-38 856
DATE:	September 6, 2018
ORDER
Entitlement to an effective date prior to July 3, 2012, for the grant of service connection for gastroesophageal reflux disease (GERD) with hiatal hernia is denied.
Entitlement to a rating higher than 10 percent for GERD with hiatal hernia is denied.
FINDINGS OF FACT
1.  The Veteran’s claim for service connection for GERD was denied by way of an April 2011 rating decision, which was not appealed, and no new evidence showing service connection was warranted was received within one year of that decision.
2.  The Veteran filed a claim to reopen entitlement to service connection for a stomach condition, which was deemed a claim to reopen entitlement to service connection for GERD, on July 3, 2012.  
3.  Throughout the pendency of the claim, the medical evidence shows that the Veteran’s GERD with hiatal hernia has not resulted in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.
CONCLUSION OF LAW
1.  The criteria for an effective date prior to July 3, 2012, for the grant of service connection for GERD with hiatal hernia have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).
2.  The criteria for a rating higher than 10 percent for GERD with hiatal hernia have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board recognizes that the Veteran has, in addition to the claims addressed in this decision, claims related to service connection for various disability and an earlier effective date for the award of service connection for tinnitus, as well as claims related to the rating and effective date of his service-connected psychiatric disorder and entitlement to a total disability rating based upon individual unemployability (TDIU).  The service connection and tinnitus effective date claims were certified to the Board by the Denver, Colorado, Regional Office, while the claims decided herein were certified to the Board from Albuquerque, New Mexico.  Thus, the claims are decided in separate decisions.  The record shows the psychiatric and TDIU claims to be under the jurisdiction of the Des Moines, Iowa, Regional Office and currently undergoing development.  These issues, therefore, will be addressed separately and after certification to the Board.
Entitlement to an effective date prior to July 3, 2012, for the grant of service connection for GERD with hiatal hernia
In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  
The effective date of the award based upon a claim to reopen is the date of receipt of the claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r) (2017).
In 2015, the laws changed related to what is construed as a claim; however, this appeal relates to claims file prior to 2015.  38 U.S.C. § 5101 (2012); 38 C.F.R. § 3.151 (2017).  Thus, for the purpose of this case a “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a) (2011).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).
The Veteran is seeking an effective date prior to July 3, 2012, for the award of service connection for GERD.  The Board reviewed the October 2015 Notice of Disagreement with the effective date assigned, as well as the other evidence of record, and there is no indication by the Veteran or his representative as to why they contend an earlier effective date is warranted.
Following its review of the record, the Board finds that July 3, 2012, is the correct effective date for the award of service connection for GERD, because that is the date of receipt of his claim to reopen.  The Veteran was originally denied service connection for GERD by way of an April 2011 rating decision.  No evidence or statements suggesting service connection for GERD is warranted was received any time within the year following the April 2011 rating decision.  The next communication from the Veteran was his statement received on July 3, 2012 claiming service connection for a stomach condition, which the RO construed as a claim to reopen service connection for GERD.  The claim was later granted and the July 3, 2012, effective date was assigned.
The Board recognizes that the Veteran had GERD throughout the relevant time prior, but even with medical evidence showing the presence of GERD, there is no evidence that the Veteran intended to file the claim at any time after the April 2011 decision and prior to July 3, 2012.  See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). 
Thus, the appropriate date for the establishment of service connection based upon the claim to reopen service connection for GERD is the date of receipt of the claim, July 3, 2012.
In reaching this decision, the Board has considered the Veteran’s and his representative’s various written statements.  Again, they made no specific contentions as to why an earlier effective date should be awarded.  The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.
Entitlement to a rating higher than 10 percent for GERD with hiatal hernia
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected GERD with hiatal hernia on appeal.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review.  
Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017).  
In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2017). 
The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2017).  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
The Veteran is seeking an initial rating higher than 10 percent for his service-connected GERD with hiatal hernia.  He was initially awarded the 10 percent rating, effective July 3, 2012, under 38 C.F.R. § 4.114, DC 7399-7346.  DC 7346 pertains to hiatal hernia.  Under DC 7346, the currently assigned 10 percent rating is warranted where hiatal hernia manifests with two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent rating is warranted for GERD that manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The highest schedular rating of 60 percent 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.  
The Veteran’s clinical records throughout the pendency of this claim, since July 2012, show the indication of GERD throughout on the Veteran’s list of current disorders, but there is no clinical treatment for the disorder.  The Veteran has received one VA examination during the pendency of this claim.  He has given no indication of a worsening of this condition since the August 2014 VA examination, and the lack of evidence in the clinical records also does not suggest the disorder has worsened.  Thus, the Board finds the present record adequate for rating the Veteran’s GERD with hiatal hernia and remand for an updated examination is not necessary.
The August 2014 VA examination report shows the Veteran reported currently experiencing persistently recurrent epigastric distress, dysphagia, heartburn, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance due to esophageal reflux, transient nausea, and vomiting.  The examiner noted there were no other pertinent physical findings.  As to the functional impact, the Veteran reported he worked in the automotive industry, in sales, and as a mechanic, and he would have to miss work on occasion due to pain and regurgitation.  
In sum, the evidence shows the Veteran as having symptoms throughout the pendency of this appeal, but these symptoms were not characterized as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  The Board sees no indication of considerable impairment of health in the VA examination report and given the lack of treatment, there is no indication of such a level of disability in the clinical records.  Neither the Veteran, nor his representative have submitted any lay statements suggesting any certain level of impairment or explaining why they believe an increased rating is warranted.  There is simply not evidence in the record to support a higher rating for the Veteran’s GERD with hiatal hernia.
The Board has considered whether there is any other basis for granting a higher rating for the GERD with hiatal hernia for any portion of the period on appeal, but has found none.  The Board is sympathetic to the Veteran’s claim, but taking all the relevant evidence of record into account, the preponderance of the evidence is against an increased initial rating.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Finally, the Board has considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised based upon the GERD with hiatal hernia alone.  Neither the Veteran nor his representative has suggested that a TDIU is warranted in this case based upon this disability alone.  
(Continued on the next page)
 
The Board recognizes a pending TDIU claim being decided separately with the Veteran’s psychiatric rating claim.  In this case, however, there is no suggestion in the record that his GERD with hiatal hernia alone renders him unemployable.  Therefore, the Board finds that the issue of entitlement to a TDIU based on the disability at issue has not been raised in this case.
 
H.M. WALKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Adamson, Counsel 

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