Citation Nr: 0101137 Decision Date: 01/17/01 Archive Date: 01/24/01 DOCKET NO. 99-18 759 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased evaluation for gastroesophageal reflux disease (GERD), hiatal hernia (Barrett's esophagus), postoperative transhiatal esophagectomy, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran had active military service from June 1972 to June 1974. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of February 1999, by the Buffalo, New York Regional Office (RO), which granted service connection for GERD, hiatal hernia (Barrett's esophagus), postoperative transhiatal esophagectomy, and assigned a 60 percent disability rating, effective August 30, 1996. Following the receipt of an additional medical statement, a rating action in March 1999 confirmed the evaluation assigned to the service-connected disorder. The notice of disagreement with this determination was received in June 1999. The statement of the case was issued in July 1999. The substantive appeal was received in August 1999. Additional medical records were received in September and November 1999, and a supplemental statement of the case was issued in January 2000. The appeal was received at the Board in June 2000. The veteran has been represented throughout his appeal by The American Legion, which submitted written argument to the Board in September 2000. By rating action in May 2000, the RO denied service connection for blindness of the right eye, secondary to service-connected GERD with hiatal hernia (Barrett's esophagus), postoperative transhiatal esophagectomy. The veteran was notified of that determination and of his appellate rights by letter dated later in May 2000. In a subsequent rating action in June 2000, the RO also denied the veteran's claim for a total disability rating based on individual unemployability. The veteran was notified of that determination and of his appellate rights by letter dated later in June 2000. However, the veteran has not yet initiated an appeal with respect to the denial of service connection for blindness of the right eye on a secondary basis, and the denial of a total rating based on individual unemployability. Thus, those issues are not in appellate status at this time, and will not be addressed by the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (2000). FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The predominant disability picture for the veteran's digestive disability is reflected in DC 7346 for evaluation of hiatal hernia. 3. The veteran's GERD, hiatal hernia (Barrett's esophagus), postoperative transhiatal esophagectomy, is primarily manifested by complaints of epigastric discomfort; it does not require the veteran to limit his foot intake to liquids. 4. The veteran's esophageal disease with hiatal hernia, postoperative esophagectomy is not productive of more than severe impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for GERD, with hiatal hernia (Barrett's esophagus), postoperative esophagectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4 to include §§ 4.1, 4.2, 4.7, 4.10, 4.14, 4.112, 4.113, 4.114, Diagnostic Codes 7203, 7346 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Factual background. The records reflect that the veteran entered active duty in June 1972; an enlistment examination was negative for any complaints or findings of a stomach disorder. The service medical records reflect that the veteran was seen in November 1973 for complaints of heartburn, burning pain up the esophagus, and frequent indigestion. An upper gastrointestinal (GI) series of the esophagus and stomach revealed only equivocal evidence of a hiatal hernia. The veteran was treated with medication and recommendation of elevating the head of his bed. The veteran was again seen in March 1974 for complaints of upset stomach. The separation examination, conducted in June 1974, was negative for any complaints or findings of a stomach disorder. The veteran's application for service connection was received in August 1996. Submitted in support of the veteran's claim were private treatment reports dated from November 1990 through April 1996. These records showed that the veteran was admitted to a hospital in November 1990 for alcohol detoxification; it was noted that, prior to his admission, he also had a history of developing pain with some coughing up emesis and starry stools. During hospitalization, the veteran was seen in consultation and treated actively for gastrointestinal bleeding. He had an endoscopy with a final diagnosis of esophageal ulcer, healing and gastric outlet obstruction with patent pylorus. The records also indicate that the veteran was seen in March 1995 with upper gastrointestinal bleeding; an upper endoscopy detected the presence of Barrett's esophagus and mucosal dysplasia. In June 1995, the veteran was admitted to the hospital with a diagnosis of Barrett's esophagus with dysplasia, and he underwent a laparoscopic fundoplication with remarkable relief of his GERD symptoms. An abdominal sonogram performed in January 1996 was reported to be normal. The above medical records indicate that the veteran was readmitted to a hospital in February 1996 for recurring episodes of nausea and vomiting; he also complained of chest discomfort, left upper quadrant discomfort, and reflux symptoms. He denied diarrhea or constipation. The veteran underwent an esophagogastroduodenoscopy (EGD), which revealed a slipped Nissen fundoplication, but the stomach was free of ulcers or erosions. The records indicate that the veteran had recurrence of his symptoms, and a recent barium swallow revealed inadequate repair of the hiatal hernia, collis- nissen with esophagoscopy. The veteran was afforded a VA compensation examination in January 1997, at which time he reported noticing some dysphagia with the sensation of food sticking in the substernal area in the past few months; he also reported daily diarrhea. The veteran was described as 5'11", and weighing 189 pounds; he was well-nourished. The skin revealed bilateral laparoscopic incisions of the lower anterior thorax; there was a left thoracotomy scar. Examination of the abdomen revealed tenderness in both the left and right hypochondrium; no masses or large organs were felt. The impression was Barrett's esophagus, status post hiatal hernia repair x2 with dysphagia and diarrhea. Received in April 1998 were private treatment reports dated from August 1995 to April 1997, which show that the veteran continued to receive clinical evaluation and treatment for his gastroesophageal symptoms. Among the records was the report of an endoscopy performed in April 1997, which revealed that there was food retained in the total stomach; normal duodenal folds in the bulb, and postoperative change at the gastroesophageal junction and Barrett's esophagus. Received in June 1998 were VA outpatient treatment reports dated from November 1997 to June 1998, reflecting treatment for several disabilities, including his gastroesophageal reflux disease. The veteran was seen in April 1998 with complaints of progressive and intermittent dysphagia for the past year; he reported bad appetite and a 30 pound weight loss. The impression was documented Barrett's esophagus; and status post antireflux surgery x2. It was noted that the veteran needed surveillance for Barrett's esophagus presently without reflux, but with intermittent progressive dysphagia. In June 1998, the veteran underwent endoscopy with biopsy; the impression was Barrett's esophagus, possible slipped fundoplication, with no structural cause for dysphagia. Received in November 1998 were private treatment reports dated in March 1995, which show that the veteran was admitted to a hospital with a history of severe gastroesophageal reflux symptoms since 1972, with progressive worsening of symptoms. The veteran indicated that he was having pain in the upper abdomen and lower chest, with episodes of aspiration and regurgitation of bile and severe bloating and pressure in the abdomen almost constantly, and episodes of coughing and choking spells because of aspiration. It was noted that the veteran underwent laparoscopic Nissen fundoplication. The veteran tolerated the procedure well and was sent to recovery in stable condition. The veteran was afforded a VA compensation examination in January 1999, at which time it was noted that the veteran underwent a total esophagectomy for Barrett's esophagus with dysplasia and anastomosis of his stomach in December 1998; since then, he required balloon dilatation and would require same in the future. It was also noted that he had a feeding jejunostomy. On examination, it was noted that the veteran weighed 180 pounds. There was a recent long scar of the left anterolateral neck; there was an old thoracotomy scar and a recent midline abdominal scar extending from the xiphoid to just below the umbilicus. There was no adenopathy. The abdomen was diffusely tender; there was a jejunostomy tube in place. The impression was status post esophagectomy for Barrett's esophagus; and GERD, hiagal hernia. The examiner stated that the symptoms in service were related to current condition. Of record is a private medical statement from Jana Dosztan, R.N., dated in December 1998, wherein she discussed the history of the veteran's GERD and the various surgical procedures he underwent for treatment thereof. Nurse Dosztan reported that the veteran was admitted to a hospital on December 10, 1998 with a diagnosis of failed nissen, GERD and Barrett's esophagus. She noted that the veteran underwent a transhiatal esophagectomy with placement of a feeding jejunostomy; he was discharged home in satisfactory condition. Received in July 1999 were private treatment reports dated from January 1998 through July 1999, which show that the veteran continued to receive ongoing clinical evaluation and treatment for his GERD. In January 1998, the veteran was seen for evaluation of symptoms of postprandial abdominal bloating and fecal urgency; it was also noted that he was losing weight and was beginning to have difficulty with hearing and blurry vision. The assessment was chronic diarrhea of undetermined etiology. The veteran underwent a colonoscopy and biopsy of the colon. The diagnosis was colonic mucosa with mild chronic inflammation. The records indicate that the veteran was seen on January 7, 1999 for follow up evaluation of esophagectomy performed on December 10, 1998; he was also status post balloon dilatation, after which he was able to eat solid foods until he noticed difficulty swallowing. The pertinent diagnosis was dysphagia, status post esophagectomy, and status post balloon dilatation. Upon conducting a barium swallow in May 1999, liquids were noted to flow easily through the esophagogastric anastomosis, but there was slight delay in passage of solids; it was noted that another dilatation might be necessary in the near future. Medical records dated in July and August 1999 reflect that the veteran was discovered to have an obstruction in the cervical anastomotic area; a repeat barium swallow was performed and on July 10, 1999, the veteran underwent an esophagoscopy and revision of the cervical esophagogastric anastomosis. An open j-tube was also placed. He did well postoperatively. Upon conducting a barium swallow on July 19, 1999, there was no evidence of obstruction. In a medical statement from Boris Buniak, M.D., dated July 23, 1999, he reported that, after the above surgery, the veteran developed vocal chord paralysis, but it appeared that his swallowing mechanism was working adequately. The veteran was seen for evaluation on August 1, 1999, at which time it was reported that staples for the surgery were removed on July 28, 1999; thereafter, a small area of redness developed that increased in size greatly over the last three day. The veteran denied any nausea, vomiting or diarrhea; he also denied any shortness of breath. The abdomen was soft, nontender, and nondistended. The diagnosis was incisional abcess. Received in September 1999 were private treatment reports dated from March 1995 through July 1999, reflecting treatment for several disabilities, including the veteran's GERD; clinical findings from those reports were previously reported and discussed above. Received in November 1999 were VA outpatient treatment reports dated from December 1997 through November 1999, showing continuous clinical evaluation and treatment for symptoms of the GERD as well as left true vocal chord paralysis, status post surgical revision of esophagogastric anastomosis. B. Legal analysis. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural 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. 38 C.F.R. § 4.20 (2000). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2000). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. 38 C.F.R. § 4.113 (2000). The record reflects that the veteran's GERD is rated under Diagostic Code 7346, where a maximum schedular rating of 60 percent is of application where 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. 38 C.F.R. § 4.114, DC 7346. The veteran's GERD is also rated as analogous to stricture of the esophagus because his main symptom has been described by medical professionals as a feeling of food being "stuck" in his throat. Code 7203 provides a 30 percent evaluation for moderate stricture of the esophagus. A 50 percent evaluation is warranted for severe stricture of the esophagus, permitting liquids only. An 80 percent evaluation is warranted for stricture of the esophagus permitting passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, DC 7203. After careful review of the evidentiary record, the Board notes that a rating of 60 percent is in effect for the veteran's GI disorder, which is the maximum schedular rating under Diagnostic Code 7346 for hiatal hernia. As noted above, he is also rated under Diagnostic Code 7203, which provides an 80 percent rating for stricture of the esophagus permitting passage of liquids only, with marked impairment of general health. However, the records do not show that the veteran is limited to liquids only; in fact, in his medical statement dated in July 1999, Dr. Buniak noted that it appeared that the veteran's swallowing mechanism was working adequately. In addition, following his last surgery in July 1999, a barium swallow was performed on July 19, 1999 and there was no evidence of obstruction. Therefore, an increased rating for the veteran's GERD, hiatal hernia, status post transhiatal esophagectomy is not in order. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Codes 7203, 7346. ORDER Entitlement to an evaluation in excess of 60 percent for GERD, hiatal hernia (Barrett's esophagus), postoperative transhiatal esophagectomy, on a schedular basis, is denied. REMAND The remaining issue before the Board is whether the veteran is entitled to an increased evaluation for his GERD, hiatal hernia, postoperative transhiatal esophagectomy on an extraschedular basis. The RO denied entitlement to that benefit in the statement of the case issued in July 1999. Applicable regulations provide the following as to the exceptional case where schedular ratings are inadequate: To accord justice...to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2000). In Fisher (Raymond) v. Principi, 4 Vet. App. 57, 60 (1993), the United States Court of Appeals for Veterans Claims (Court) held that where circumstances are presented that the Director of VA's Compensation and Pension Service might consider exceptional or unusual, the RO must specifically adjudicate the issue of whether referral to an official at the VA Central Office is indicated and, if the case is not referred in such a situation, the Board must address the nonreferral on appeal. In his substantive appeal (VA Form 9), received in August 1999, the veteran has stated that he had had continued medical problems and ongoing lapses of employment due to his GERD; he also reported that this disability had caused his life to be in complete turmoil. In addition, on his application for total disability rating (VA Form 21-8940), he stated that the complications of his hiatal hernia prevented him from securing or following substantially gainful employment. The Board observes that the records indicate that, during the period from January 1998 through July 1999, the veteran had multiple periods of hospitalizations as well as several surgical procedures requiring follow up evaluations. The Board finds that, in light of the above medical evidence reflecting frequent periods of hospitalization, and the veteran's credible statements as to the effect of his GERD, with hiatal hernia, on his employment, circumstances have been presented which the Under Secretary for Benefits or the Director of the Compensation and Pension Service might consider exceptional or unusual with a related factor of marked interference with employment. Therefore, this case will be REMANDED to the RO for referral to the appropriate officials. 1. The RO should refer the veteran's claim for an increased evaluation for GERD, hital hernia (Barrett's esophagus), postoperative esophagectomy, on an extraschedular basis to the VA Central Office for consideration by appropriate officials, under the provisions of 38 C.F.R. § 3.321(b)(1). 2. If the determination remains adverse to the veteran in any way, both he and his representative should be furnished a supplemental statement of the case in accordance with 38 U.S.C.A. § 7105 (West 1991), which includes a summary of additional evidence submitted and all applicable laws and regulations. This document should include detailed reasons and bases for the decisions reached. They should then be afforded the applicable time period in which to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to accord the veteran due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). ANDREW J. MULLEN Veterans Law Judge Board of Veterans' Appeals