Citation Nr: 18160588
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-03 642
DATE:	December 27, 2018
ORDER
Entitlement to an effective date earlier than November 19, 2010, for the award of service connection for gastroesophageal reflux disease (GERD) is denied. 
Entitlement to a higher initial disability rating in excess of 10 percent for service connected GERD is denied. 
New and material evidence having been received, the appeal to reopen service connection for a right knee disorder is granted. 
REMANDED
The issue of entitlement to service connection for a right knee disorder, including as due to service connected status post total left knee replacement, is remanded. 
FINDINGS OF FACT
1. The Veteran, who had active service from September 1979 to April 1988, initiated his current claim for service connection for GERD on November 19, 2010, which is the earliest possible date for which service connection may be awarded in the instant matter.
2. For the entire initial rating period on appeal, the Veteran’s service-connected GERD did not manifest as, or more nearly approximate, persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  
3. In a December 2006 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for a right knee disorder; the Veteran did not perfect an appeal, no new and material evidence was received during the one year appeal period, and that decision became final. 
4. New evidence received since the December 2006 rating decision relates to an unestablished fact that a right knee disorder may have been caused or aggravated by the service connected status post total left knee replacement, which is necessary to substantiate the claim for service connection for a right knee disorder. 
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than November 19, 2010, for the award of service connection for GERD have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).
2. For the entire initial rating period on appeal, the criteria for an initial disability rating in excess of 10 percent for service-connected GERD have not been met or more nearly approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.114, Diagnostic Code 7399 7346. 
3. The December 2006 rating decision is final with respect to entitlement to service connection for a right knee disorder.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
4. Evidence received since the December 2006 rating decision is new and material to reopen service connection for a right knee disorder.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active duty service from September 1979 to April 1988.
This case is on appeal before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) RO in St. Petersburg, Florida, and a June 2014 rating decision of the VA RO in Newington, Connecticut.
A review of the record reflects additional evidence was added subsequent to the November 2016 Statement of the Case (SOC).  Although this evidence was provided without wavier of RO consideration, it was either submitted directly by the Veteran or is not pertinent to any of the issues on appeal.  As such, no further action is required.  Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) 
Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  
The Veteran seeks an effective date prior to November 19, 2010 for the award of service connection for GERD, along with an initial disability rating in excess of 10 percent.  The Veteran also seeks to reopen his claim for service connection for a right knee disorder.   
In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49.  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).
I.	Earlier Effective Date 
The Veteran seeks an effective date earlier than November 19, 2010 for the award of service connection for GERD.  He alleges that his GERD is secondary to his service-connected left knee disorder because it was exacerbated by the medication he began taking after his total left knee replacement surgery on August 5, 2008.  Therefore, he claims that the effective date of the award of service connection for GERD should also be August 5, 2008.  See June 2017 appellate brief. 
An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service.  Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 

Appellate review of a rating decision is initiated by a notice of disagreement (NOD) and completed substantive appeal after a SOC has been furnished.  38 U.S.C. § 7105(a); 38 C.F.R. § 20.200.  Failure to perfect an appeal renders a rating decision final.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103.  A final decision is generally not subject to revision on the same factual basis.  38 C.F.R. § 3.104(a) (2017).  Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE).  38 C.F.R. § 3.105(a) (2017). 

A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits.  38 C.F.R. §§ 3.1(p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198 200 (1992).  Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).  The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1(r) (2017).
VA received the Veteran’s application for service connection for GERD on November 19, 2010, many years post service separation.  Based on that submission, a June 2014 rating decision granted service connection for GERD, effective November 19, 2010.  Review of the record reflects that no claim, formal or informal, for service connection for GERD was received by VA prior to November 19, 2010.
Although previous final determinations may be overturned with evidence of CUE, the Board notes that this is an initial claim.  Therefore, there is no prior determination in which the Veteran or his representative may allege CUE.  
The Board also recognizes the affirmative evidence in the claims file establishing a link between the exacerbation of the Veteran’s GERD and the medications he began taking after his left knee replacement surgery on August 5, 2008, particularly the findings reflected in the June 2014 VA examination.  While the Board is sympathetic to the Veteran’s argument that an earlier effective date is warranted on this basis, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority.  While entitlement to service connection may have arose earlier, the date entitlement arose does not decide the effective date in this case; the date of claim does.  The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).
On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400, and no effective date for the award of service connection earlier than November 19, 2010 (date of receipt of claim for service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for GERD is without legal merit, and must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit).  For these reasons, the Board concludes that an effective date prior to November 19, 2010 for the award of service connection for GERD is not warranted as a matter of law.
II.	Increased Disability Rating
The Veteran alleges that his service-connected GERD warrants an initial disability rating in excess of 10 percent throughout the entire period on appeal, which began on November 19, 2010, the date service connection was established.  See January 2017 Form 9.  Specifically, per a June 2017 brief, the Veteran’s representative argues that a 30 percent disability rating is warranted due to symptoms of epigastric distress, dysphagia, reflux, substernal pain, and sleep disturbance.
Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran’s condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).
The Veteran’s GERD is currently assigned a 10 percent disability rating under Diagnostic Code 7399-7346, as analogous to a hiatal hernia.  38 C.F.R. § 4.114.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional one to identify the basis for the rating assigned; the additional diagnostic code is shown after the hyphen.  Id.
Under Diagnostic Code 7346, a 10 percent disability rating is assigned when there are two or more of the symptoms required for a 30 percent evaluation, but with less severity.  A 30 percent evaluation is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health.  A 60 percent disability rating is assigned 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.  Id. 
In May 2014, the Veteran submitted in a statement in which he asserted that he had experienced acid reflux and indigestion since service.  At the time, he thought it was job-related, and reported taking over the counter medications to control the condition for years after separation.  However, when he had his left knee replaced in August 2008, he experienced an exacerbation of his GERD symptoms and had difficulty keeping food down.  He was then prescribed Omeprazole, which he has used continuously since the operation.
The Veteran was afforded a VA examination in June 2014.  The examiner reviewed the claims file and conducted an in-person evaluation, noting the prior diagnosis of GERD.  The Veteran stated that he began having acid reflux around 1985; however, the medications he began taking after his August 2008 left knee replacement surgery irritated his stomach, necessitating a prescription for Omeprazole.  The examiner found that the Veteran’s GERD requires continuous medication to control, and that it results in infrequent episodes of epigastric distress, dysphagia, reflux, substernal pain, and sleep disturbance occurring about twice per year.  The condition impacts the Veteran’s ability to work because it results in mild to moderate epigastric pain and distress after eating and when stressed.  Lastly, the examiner opined that it was at least as likely as not that the Veteran’s GERD originated in service and was worsened by the treatment associated with his left knee replacement.
A VA treatment record from May 2015 states that the Veteran’s GERD was well controlled with medication.  Although the Veteran complained of frequent nausea in November 2017, he did not report any gastrointestinal problems during the majority of his appointments between April 2016 and December 2017. 
After careful consideration of the claims file, the Board concludes that the evidence of record does not support the application of a disability rating in excess of 10 percent for the Veteran’s service-connected GERD at any point during the appeal period.  
In order to qualify for a 30 percent evaluation under Diagnostic Code 7346, there must be evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health.  Per the June 2014 VA examination report, the VA examiner specifically found that the Veteran had infrequent episodes of epigastric distress, which cannot be said to meet the criteria for persistently recurrent epigastric distress.  
Such findings are consistent with progress notes indicating that the Veteran’s GERD is generally well-controlled and the few reports of significant symptomology.  While the Board recognizes that the Veteran’s GERD has required continuous medication since August 2008, this fact does not suggest that the condition is productive of considerable impairment of health.  Additionally, neither the findings reflected in the June 2014 VA examination nor the Veteran’s treatment records suggest that the Veteran’s GERD symptoms are persistent or recurrent.  As such, the Board finds that the evidence of record is inconsistent with the assignment of a 30 percent disability rating under Diagnostic Code 7346.   
In summary, the Board concludes that the weight of the evidence is against the finding of an initial disability rating in excess of 10 percent under Diagnostic Code 7346 for the Veteran’s service-connected GERD for the entire period on appeal.  To the extent that any higher level of compensation is sought, the preponderance of the evidence is against this claim.  Hence the benefit of the doubt rule does not apply.  Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  Accordingly, the Veteran’s claim for an initial evaluation in excess of 10 percent for service-connected GERD is denied.  
The Board notes that it has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008).  After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the rating issues on appeal.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”).  As such, the Board will not further address the question of extraschedular referral in the instant decision.
III.	New & Material Evidence
The Veteran seeks to reopen his claim for service connection for a right knee disorder, which was previously denied in a December 2006 rating decision.  However, before the Board can issue a decision on the merits, it must determine whether the claim should be reopened.  
Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. § 7105.  However, pursuant to 
38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 
New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.”  See Shade v. Shinseki, 
24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.
Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)).  If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512.  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Id. at 513.
Service connection may be granted for disability that is proximately due to or the result of a service-connected disability.  Service connection may also be granted for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995).
The Veteran’s claim for service connection for a right knee disorder was originally denied in a May 1989 rating decision, which found no evidence of a relationship between the Veteran’s current condition and an in-service injury, event, or disease.  The RO issued another rating decision in December 2006, which again denied the Veteran’s claim because the evidence submitted since May 1989 was not new and material.  The Veteran did not appeal the December 2006 rating decision, and no evidence was received within one year of it.  Accordingly, the December 2006 rating decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103.
In a June 2017 brief, the Veteran’s representative argues that service connection for a right knee disorder is warranted secondary to the service connected status post total left knee replacement.  Since the December 2006 rating decision, VA received a November 2009 VA knee examination report showing that the Veteran walked with an antalgic gait due to the service connected status post total left knee replacement.  As such a gait could affect the right knee, this evidence could support a finding that a right knee disorder was caused or aggravated by the service connected status post total left knee replacement.  As such, the Board finds that the additional evidence is new and material to reopen service connection for a right knee disorder.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  
REASONS FOR REMAND
VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  Floyd v. Brown, 9 Vet. App. 88, 93 (1996).  To date, VA has not obtained an opinion concerning whether a currently diagnosed right knee disorder is caused or aggravated by the service connected status post total left knee replacement.  As such, the Board finds remand to obtain a VA knee examination and opinion is warranted.    
The issue of service connection for a right knee disorder is REMANDED for the following action:
1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning a right knee disorder.  Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record.  If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. 
§ 3.159(e).
2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s right knee, not already of record, for the period from November 2016.
3. Schedule the appropriate VA knee examination.  The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination.  A detailed history of relevant symptoms should be obtained from the Veteran.  All indicated studies should be performed.  A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  The examiner should provide the following opinions:
A)  Is it at least as likely as not (50 percent or higher degree of probability) that a currently diagnosed right knee disorder had its onset during a period of active service?  In rendering this opinion, the VA examiner should address the Veteran’s documented in service right knee injuries.
B)  Is it at least as likely as not (50 percent or higher degree of probability) that the service connected status post total left knee replacement caused a currently diagnosed right knee disorder, including as due to altered gait?
C)  Is it at least as likely as not (50 percent or higher degree of probability) that the service connected status post total left knee replacement aggravated (that is, worsened in severity) a currently diagnosed right knee disorder, including as due to altered gait?   
4. Then, readjudicate the issue of service connection for a right knee disorder, including as due to service connected status post total left knee replacement.  If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned to the Board. 

 
E. BLOWERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	MJS, Associate Counsel  

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