08-29 437
08-29 437
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty 1973–1976; appealed a 2005 RO decision that granted service connection for GERD with a 10% rating effective April 15, 2004.
- VA provided examinations in 2005, 2010, and December 2015; private and VA treatment records through Feb 2016 obtained and reviewed.
- Symptoms reported across records: epigastric distress, heartburn/pyrosis, regurgitation, nausea/vomiting; no reported substernal/arm/shoulder pain, anemia, significant weight loss, or malnutrition.
- Rating for GERD assigned by analogy to hiatal hernia (Diagnostic Code 7346); 10% was assigned based on two or more symptoms of lesser severity; 30% requires persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, accompanied by substernal/arm/shoulder pain and considerable impairment of health.
- Board concluded evidence did not meet the conjunctive criteria for a 30% rating and denied entitlement to an increased rating above 10%.
- Claim for service connection for arthritis of multiple unspecified joints (including as secondary to service‑connected left knee disability) was remanded for the AOJ to obtain clarification from the Veteran about which joints are claimed and to obtain any necessary records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GERD merits rating >10% (i.e., 30%) | Veteran: ongoing reflux symptoms (frequent/ worsening, requiring medication) justify higher rating | VA: record does not show the conjunctive criteria for 30% (no substernal/arm/shoulder pain, no considerable impairment) | Denied — 10% rating affirmed (criteria for 30% not met) |
| Whether extraschedular rating is warranted for GERD | Veteran: symptoms cause notable functional impairment (implied) | VA: no evidence of symptoms/impairment outside schedular criteria to render schedule inadequate | Denied — no extraschedular referral warranted |
| Whether arthritis of multiple unspecified joints is service connected (including secondary to left knee) | Veteran: seeks service connection for multiple joints (not yet specified) | VA: development incomplete — claimant has not identified specific joints; records/authorizations missing | REMANDED — AOJ to ask Veteran to specify joints and develop/readjudicate claim |
| Whether VA satisfied duty to assist for GERD increase claim | Veteran: (implicitly) adequate development needed | VA: examinations and records obtained; VCAA notice sufficient; examinations adequate for rating purposes | Held — duty to assist met for GERD claim |
Key Cases Cited
- Barr v. Nicholson, 21 Vet. App. 303 (VA must provide an adequate examination for rating purposes)
- Schafrath v. Derwinski, 1 Vet. App. 589 (entire history considered in evaluations)
- Fenderson v. West, 12 Vet. App. 119 ("staged" ratings when severity changes over time)
- Gilbert v. Derwinski, 1 Vet. App. 49 (preponderance of evidence standard and denial when evidence weighs against claimant)
- Thun v. Peake, 22 Vet. App. 111 (standards for extraschedular consideration)
- Gonzales v. West, 218 F.3d 1378 (no need to discuss every piece of evidence; discussion standard)
- Stegall v. West, 11 Vet. App. 268 (remand compliance requirement)
- Kutscherousky v. West, 12 Vet. App. 369 (right to submit additional evidence after remand)