Veteranclaims’s Blog

October 14, 2014

Single Judge Application; Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013); Moore v. Shinseki, 555 F. 3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2 (2014); Relevance Pre-claim Evidence; Disability History;

Excerpt from decision below:

“1 Contrary to the Secretary’s assertion, evidence that pre-dates the rating period is not per se irrelevant.
Although in rating a service-connected disability the present level of disability is of primary concern, Francisco v. Brown, 7 Vet.App. 55, 58 (1994), documents predating the effective date for a veteran’s benefits may not be ignored.Id. By regulation, when VA assigns a disability rating to a veteran’s disorder, it is specifically required to assess the veteran’s disorder “in relation to its history.” Moore v. Shinseki, 555 F. 3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2 (2014) (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.”); see also Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disablity existed, for purposes of service connection, at the time the claim was filed or during its pendency).

======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-2813
ROGER E. WRIGHT, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Roger E. Wright appeals through counsel that part of an
August 20, 2013,
decision of the Board of Veterans’ Appeals (Board) that denied (1) an
initial rating for
gastroesophageal acid/reflux disorder (GERD) higher than 10% disabling and (
2) an initial rating
for post-traumatic stress disorder (PTSD) higher than 30% disabling prior
to July 13, 2009. This
appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§
7252(a) and 7266(a). The
appellant contends that the Board erred in considering the ameliorative
effects of medication in
rating his GERD and erred in rating his mental disability by failing to
consider a separate rating for
depression. Single-judge disposition is appropriate because the issue is
of “relative simplicity” and
“the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For
the reasons set forth below, the Court will vacate and remand the Board’s
rating determination with
respect to GERD and will affirm the Board’s rating determination with
respect to PTSD for the
period prior to July 13, 2009.
The Board remanded the issue of an increased rating for PTSD from July 13,
2009, forward,
and the issue of a total disability rating based on individual
unemployability for the period prior to
July 13, 2009. Those issues are not before the Court because they were not
the subject of a final
Board decision. See Kirkpatrick v. Nicholson, 417 F.3d 1361 (Fed. Cir.
2005) (Board remand does

not constitute a final decision that may be appealed); Howard v. Gober,
220 F.3d 1341, 1344 (Fed.
Cir. 2000) (same); Breeden v. Principi, 17 Vet.App. 478 (2004) (same).
I. BACKGROUND
The following summaryof the claim history most relevant to the issues on
appeal is reflected
in the record of proceedings before the Court (record of proceedings).
The veteran served on active duty in the U.S. Army, including combat
service during the
Korean war, from February 1951 to January 1953. Record (R.) at 294; 1439-
44.
In May 2005, the appellant filed through counsel an application for, inter
alia, acid reflux,
to include GERD. R. at 992-98, 1002, 1401-06. Following a May 2010 VA
medical opinion that
the appellant’s GERD was secondary to his PTSD (R. at 877-86), the RO in
December 2010 granted
service connection for GERD, effective in May 2005, with a 10% disability
rating. R. at 838-44.
The appellant filed a Notice of Disagreement (NOD) and perfected his
appeal to the Board. R. at
367-76, 584-91.
The appellant’s May 2005 application also sought service connection for a ”
psychiatric
disorder, to possibly include PTSD.” R. at 1402. The VA regional office (
RO) denied the claim in
March 2006 and the appellant filed an NOD the following month. R. at 1133-
39, 1140-51.
Following a January 2007 medical examination resulting in a diagnosis of
PTSD (R. at 1102-08),
the RO in March 2007 granted service connection for PTSD, effective in
May2005, with a disability
rating of 30% (R. at 1065-71). Following another VA PTSD examination in
July 2009 (R. at 979-
84), the RO in October 2009 increased the PTSD rating to 50% disabling,
from July 13, 2009,
forward. R. at 965-70, 971-75. The appellant filed another NOD, stating
that he “welcomes the
increase in service connection for his claim, but disagrees with the
effective date of the increase and
the evaluation of only 50 percent disabling.” R. at 939. In subsequent
decisions, the RO declined
to award a higher disability rating. See, e.g., R. at 315-18.
In the decision under review, the Board denied a rating higher than 10%
for the appellant’s
GERD. R. at 3-21. The Board reviewed the medical evidence regarding the
breadth and severity
of the appellant’s symptoms, but denied a 30% disability rating, relying
heavily on a finding that the
appellant’s symptoms were well controlled with medication. R. at 8-11.
With respect to the
2

appellant’s rating for PTSD for the period prior to July 13, 2009, the
Board reviewed the medical
evidence of record and determined that a rating higher than 30% was not
warranted. R. at 11-16.
The Board noted that the date of July 13, 2009, which marked the beginning
of the appellant’s 50%
rating, was based in part on a VA medical examination of the same date
showing that the appellant’s
condition had worsened. R. at 16. The Board remanded the issue of the
appropriate PTSD rating
for that later period because the record reflected that there maybe
additional mental health treatment
records from the Mayo Clinic in Rochester, Minnesota, dated from November
10, 2010, that had not
yet been obtained by the agency. R. at 17.
Before the Court, the appellant argues that the Board erred in its
assessment of the
appropriate rating for his GERD by considering the ameliorative effects of
his medication. The
appellant further argues that the Board relied on an inadequate VA medical
examination that did not
account for the appellant’s symptoms in the absence of medication and was
not conducted during a
time when he was experiencing flare-ups. With respect to the assigned
rating for PTSD prior to July
13, 2009, the appellant argues that the Board erred by not adequately
explaining why it did not
remand that issue given the potentiallymissing VA treatment records. The
appellant also argues that
the Board erred by not assigning a separate rating for depression.
The Secretary contends that the appellant’s arguments lack merit and that
the Court should
affirm the Board’s decision.
II. ANALYSIS
A. Rating for GERD
The Board rated the appellant’s GERD as 10% disabling under the provisions
of 38 C.F.R.
§ 4.114, Diagnostic Code (DC) 7346. Under those criteria, a 30% rating is
warranted for:
“Persistently recurrent epigastric distress with dysphagia [(difficulty in
swallowing)], pyrosis
[(heartburn)], and regurgitation, accompanied by substernal or arm or
shoulder pain, productive of
considerable impairment of health.” 38 C.F.R. § 4.114, DC 7346 (2014). A
10% rating is warranted
when the veteran has “two or more of the symptoms for the 30 percent
evaluation of less severity.”
Id.
The Board acknowledged the record evidence that the appellant “had a
history of nausea,
epigastric distress, gastric burning, regurgitation, reflux, heartburn,
cramping, and occasional
3

bloating since the 1950’s.” R. at 9. The record also reflects that the
appellant reported that when he
was working as a truck driver, before he began taking medication for his
GERD in 2004, he “had a
lot of discomfort and had to stop several times per day” to treat his
symptoms. R. at 350.1
The
Board also recognized that the June 2012 VA examination report noted that
the appellant took
continuous medication for his condition but continued to have problems,
including infrequent
episodes of epigastric distress, pyrosis (heartburn), reflux,
regurgitation, substernal arm or shoulder
pain, and sleep disturbance caused by esophageal reflux. R. at 9, 436-39.
In considering the
application of the rating criteria to the appellant’s symptoms, the Board
placed particular emphasis
on a finding that the appellant’s GERD is “well controlled with medication
.” R. at 10.
The appellant contends that the Board committed legal error in considering
the ameliorative
effects of medication, because that factor is not contemplated bythe
ratingcriteria. Appellant’s Brief
(Br.) at 8. In support of this argument, he cites our decision in Jones,
where we held that “the Board
may not denyentitlement to a higher rating on the basis of relief provided
by medication when those
effects are not specifically contemplated by the rating criteria.” Jones v.
Shinseki, 26 Vet.App. 56,
62 (2012). The appellant’s argument is convincing. Because the rating
criteria applied by the Board
do not specifically contemplate the effects of medication, it was error
under Jones for the Board to
rely on that factor in denying a higher rating. The only response offered
by the Secretary is that
“there is nothing in DC 7346 that limits consideration of [a]ppellant’s
GERD symptomatology to
only when he is not taking medication.” Secretary’s Br. at 8. However,
that argument was rejected
in Jones. 26 Vet.App. at 60, 63 (rejecting the Secretary’s argument that
the silence in the rating
criteria at issue regarding the effects of medication indicates that the
criteria do not differentiate
between a claimant’s condition with or without medication).
1
Contrary to the Secretary’s assertion, evidence that pre-dates the rating period is not per se irrelevant.
Although in rating a service-connected disability the present level of disability is of primary concern, Francisco v. Brown, 7 Vet.App. 55, 58 (1994), documents predating the effective date for a veteran’s benefits may not be ignored.Id. By regulation, when VA assigns a disability rating to a veteran’s disorder, it is specifically required to assess the veteran’s disorder “in relation to its history.” Moore v. Shinseki, 555 F. 3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2 (2014) (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.”); see also Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (Board erred in failing to address pre-claimevidence in assessing whether a current disablity existed, for purposes of service connection, at the time the claim was filed or during its pendency).
4

On remand, the Board must reevaluate the appellant’s condition and may
not consider the
reliefafforded byhis medication when doing so. The Board must discuss
whether a medical opinion
is required to address this issue and, if so, provide an adequate
examination to the appellant. The
appellant is free to submit additional evidence and argument, including
the arguments raised in his
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per
curiam order), and the Board must consider any such evidence or argument
submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court has held that “[a] remand
is meant to entail a
critical examination ofthejustification forthedecision.” Fletcher v.
Derwinski,1Vet.App.394,397
(1991). This Board shall proceed expeditiously, in accordance with 38 U.S.
C. §§ 5109B, 7112
(requiring the Secretary to provide for “expeditious treatment” of claims
remanded by the Board or
Court).
B. Separate Rating for Depression
With respect to his mental disorder, the appellant argues that the Board
erred in not providing
a separate rating for depression, pointing to medical evidence of record
diagnosing that disorder.
Appellant’s Br. at 14. Because the Board did not address that question,
there is no relevant
determination for the Court to review. However, the Court mayreview
whether the Board’s decision
lacks adequate reasons or bases for failing to address the issue. See
Clemons v. Shinseki,
23 Vet.App. 1, 3 (2009) (the Court has jurisdiction to remand to the Board
any matters that were
reasonably raised below that the Board should have decided, with regard to
a claim properly before
the Court, but failed to do so).
The Board has a duty to address all issues reasonably raised either by the
appellant or the
contents of the record. Robinson v. Peake, 21 Vet.App. 545, 552–56 (2008
), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The appellant does
not argue, and the Court
is unable to discern any indication in the record of proceedings, that the
appellant raised before VA
the issue of a separate rating for depression. In addition, the appellant
has not shown that this issue
was reasonably raised by the record because he has not shown that he is
service connected for
depression or even that such issue was adjudicated by the RO. It is well-
established that the
assignment of a rating for a disabilityclaimed to be connected to service
is a “downstream” issue that
can only be decided after service connection is awarded. See Grantham v.
Brown, 114 F.3d 1156,
5

1158-59 (Fed. Cir. 1997); Holland v. Gober, 10 Vet.App. 433, 436 (1997).
To the extent that the
appellant believes that he has a claim for depression pending with VA that
has not been adjudicated
by the RO, the appropriate procedure is for the appellant to seek issuance
of an RO decision and, if
the decision is unfavorable, submit an NOD. See 38 U.S.C. §§ 5104, 7105;
DiCarlo v. Nicholson,
20 Vet.App. 52, 56 (2006). If the Secretary refuses to issue a decision,
then the appellant may file
a petition with this Court challenging the Secretary’s refusal to act. See
id. at 56–57 (citing Costanza
v. West, 12 Vet.App. 133, 134 (1999)).2
C. Rating for PTSD
The appellant contends that the Board provided inadequate reasons or bases
for its decision
to determine, and not remand, the appropriate disability rating for PTSD
for the period prior to July
13, 2009 (earlier period), despite the Board’s finding that the record may
be incomplete with respect
to medical treatment records from the Mayo Clinic dated from November 2010
forward. The
appellant contends that the Board’s remand of the rating determination for
the period from July 13,
2009, forward (later period), in order for VA to obtain the potentially
missing records, necessitated
a further explanation of why the Board did not also remand the rating
decision for the earlier period.
The Court finds that the Board was not required to provide further
explanation to provide an
adequate understanding of its decision, given that treatment records from
the Mayo clinic during the
earlier periodareof record and the potentiallymissing treatment records
from the Mayo clinic would
be dated during the later period.
To the extent that the appellant is arguing that the Board erred in
finding that VA satisfied
its duty to assist with respect to the rating for the earlier period, the
appellant has failed to
demonstrate how the potentially missing treatment records, dated from
November 2010 forward,
have a reasonable possibility of substantiating his claim to a higher
rating. See Golz v. Shinseki,
590 F.3d 1317, 1323 (Fed. Cir. 2010) (Court will not find remandable VA
error on the basis of VA
failure to obtain possibly relevant records where the appellant has not
shown that the records “have
a reasonable possibility of substantiating his claim”). The appellant
contends that “it is reasonable
to assume” that they are relevant to his “separate stand-alone depression.”
Appellant’s Br. at 15.
2
The appellant does not argue that the Board should have remanded or
referred a claim for service connection
for depression.
6

However, as found above, the issue of a separate disability rating for
depression was not properly
before the Board because that disorder had not been service connected. To
the extent that the
appellant argues that it should be assumed that the records are relevant
to the PTSD rating for the
period prior to July 13, 2013, simply because the Board implicitly
determined that they are relevant
to the rating period from July 13, 2013, forward, the Court finds that
argument insufficient and
unconvincing. The Court therefore will affirm the Board’s assignment of a
30% initial disability
rating for PTSD for the period prior to July 13, 2009.

III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings, and the filings of the parties, that part of the August 20, 2013, Board decision assigning a 10% initial disability rating for GERD is VACATED and that issue is REMANDED for further proceedings consistent with this decision. That part of the Board decision assigning a 30% initial disability rating for PTSD for the period prior to July 13, 2009, is AFFIRMED.
DATED: September 30, 2014
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
7

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