Citation Nr: 0804387 Decision Date: 02/07/08 Archive Date: 02/13/08 DOCKET NO. 05-39 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 40 percent for acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, post-operative esophageal rupture (hereinafter referred to as a gastrointestinal disability). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from October 1970 to October 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDING OF FACT The objective and probative medical evidence of record preponderates against a finding that the veteran's service- connected gastrointestinal disability is manifested by more than episodes of intermittent dysphagia, some nausea and vomiting, occasional diarrhea, and some abdominal pain, without clinical findings of melena, hematemesis, anemia, or weight loss reflective of severe impairment of health. CONCLUSION OF LAW The schedular criteria for a rating in excess of 40 percent for the veteran's service-connected acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, post-operative esophageal rupture are not met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.27, 4.20, 4.114, Diagnostic Code (DC) 7399-7305 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to content complying notice and proper subsequent VA process. Pelegrini, supra, at 120. The VA General Counsel has issued a precedent opinion interpreting the Court's decision in Pelegrini. In essence, and as pertinent herein, the General Counsel endorsed the notice requirements noted above, and held that, to comply with VCAA requirements, the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit [a conclusion] that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be a part of the record for the claimant to prevail on the claim. See VAOPGCPREC 7-2004 (July 16, 2004). Considering the decision of the Court in Pelegrini and the opinion of the General Counsel, the Board finds that the requirements of the VCAA have been satisfied in this matter, as discussed below. Also, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. However, as the appellant's claim for an increased rating for his service- connected gastrointestinal disability is being denied, as set forth below, there can be no possibility of prejudice to him. As set forth herein, no additional notice or development is indicated in the appellant's claim. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In an August 2004 letter, issued prior to the October 2004 rating decision, the RO informed the appellant of its duty to assist him in substantiating him claim under the VCAA and the effect of this duty upon him claim. We therefore conclude that appropriate notice has been given in this case. The appellant responded to the RO's communications with additional evidence and argument, thus curing (or rendering harmless) any previous omissions. The Board concludes that the notifications received by the appellant adequately complied with the VCAA and subsequent interpretive authority, and that he has not been prejudiced in any way by the notice and assistance provided by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it appears that all obtainable evidence identified by the appellant relative to his claim has been obtained and associated with the claims file, and that he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Thus, for these reasons, any failure in the timing or language of VCAA notice by the RO constituted harmless error. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background Service connection for the veteran's gastrointestinal disability was granted in a September 1989 rating decision that awarded a 40 percent disability rating for acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, postoperative esophageal rupture. In March 1994, VA medical records indicate that the veteran had stenosis of the esophagus and underwent dilation. In a February 1995 rating action, the RO confirmed and continued the previously assigned 40 percent evaluation for the veteran's service-connected gastrointestinal disability. In August 2004, the RO received the veteran's current claim for an increased rating. In conjunction with his claim, the RO obtained VA medical records and examination reports, dated from June 2002 to October 2005. When seen in the VA outpatient clinic in June 2002, the veteran was noted to be 5 foot 2 inches tall and weighed 195 pounds. His abdomen was soft and benign and his history of esophageal stricture, status post dilation, was described as currently stable. In January 2003, records show that the veteran weighed 198 pounds and complained of difficulty swallowing. He was agreeable to seeing a gastroenterologist regarding dilation. In February 2003, the veteran was seen by a gastroenterologist in the VA outpatient clinic. The medical record indicates that the veteran had difficulty swallowing and was willing to undergo dilation. The veteran said he had intermittent dysphagia with no odynophagia. He was maintaining his weight and requested his medications be changed. Objectively, the veteran weighed 201 pounds, and was described as overweight with a high body weigh index. His abdomen was obese and non tender. There were no liver/spleen ascites and no edema. The assessment was gastroesophageal reflux disease (GERD) secondary to chronic GERD and a history of esophageal stricture secondary to esophageal rupture secondary to vomiting and pill-induced esophageal burn on top (by history) with a history of esophageal dilation that was a bad experience. The veteran requested to discontinue taking Rberprazole. Prevacid and Lansoprazole were prescribed that the veteran said helped. He was advised to avoid foods and beverages he knew produced his symtoms, e.g., acidic juices/fruits, chocolate, and sodas; abstain from alcohol, lose weight and maintain ideal body weight, and take small and frequent meals instead of large ones. His medications should be taken in liquid form or crushed, if possible. The veteran was also advised to be seated when taking medications and drink plenty of water with them to prevent recurrent pill-induced esophageal burn. When seen in the VA outpatient clinic in May 2003, the veteran complained of intermittent abdominal pain for the past year. He weighed 201 pounds. He currently denied any pain but reported that, occasionally while mowing the lawn, his right lower abdomen had sharp pain that lasted only seconds and then went away. On examination, his abdomen was moderately obese and nontender, with positive bowel sounds, and no masses. The clinical plan included abdominal pain that was fairly non specific. Abdominal series films were to be requested. A November 2003 VA medical record indicates that the veteran was seen for a regular appointment. He denied any complaints and reported having intermittent fatigue. He gained a lot of weight recently but was very sedentary. He denied having any abdominal pain or nausea or vomiting. He had some intermittent diarrhea that he attributed to his taking Lansoprazole. He denied having abdominal cramps or blood in his diarrhea. Objectively, the veteran weighed 201.4 pounds. His vital signs were stable. Abdominal examination revealed divarication of the recti with no masses palpable and the abdomen was soft and nontender with no bruits. The assessment included dysphagia that was currently asymptomatic on Lansoprazole, and fatigue attributable to hypothyroidism, for which thyroid replacement medication was prescribed. In January 2004, the veteran was seen in the VA outpatient clinic for a regular appointment and sinus-related complaints. He reported intermittent nausea that he thought occurred because he took a pill without food. He weighed 206 pounds. The assessment indicated that the veteran's dysphagia was currently asymptomatic on Lansoprazole. An April 2004 VA medical record indicates that the veteran weighed 210 pounds. Objectively, there were positive bowel sounds and his abdomen was soft and nontender. His dysphagia was currently asymptomatic on Omeprazole (that replaced Lansoprazole) and he was described as non-complaint with medication. The veteran underwent VA examination in August 2004. According to the examination report, the veteran reported that food continued to get stuck approximately once a day. When that happened, he vomited it back up. He denied any hematemesis or melena. The veteran's prescribed medications included Omeprazole daily. He denied any secretory disturbances after meals and had occasional diarrhea but no constipation. The veteran had no episodes of colic distention, nausea, or vomiting. He complained of some pain in the right lower quadrant at times. It was noted that the veteran saw a VA physician in February 2003 (as described above). The veteran had a previous esophageal dilation that was a bad experience and did not want to have further tests for this, nor did he want to have an esophagogastroduodenoscopy (EGD). On examination, the veteran had a slight weight gain due to drinking a lot of pop. There were no signs of anemia. Results of a complete blood count (CBC) were normal. There was no tenderness with palpation of the abdomen. Bowel sounds were present and no masses were felt. The clinical impression was that the veteran's service-connected gastrointestinal disability persisted and will only worsen over time. The VA outpatient records indicate that, when seen in March 2005, the veteran complained of increased dysphagia. He had significant improvement while taking Omeprazole but ran out of the medication and his symtoms worsened. The veteran requested renewal of the Omeprazole and antacid tablet prescriptions. He was not taking blood pressure and cholesterol medication due to financial issues and was taking medication prescribed from the Mental Hygiene Clinic. The examiner noted that, otherwise, the veteran seemed to be doing very well. His CBC was stable. Objectively, the veteran did not appear in acute distress. His abdomen was soft and nontender and there were positive bowel sounds. The assessment included dysphagia that was currently bothersome due to the veteran running out of Omeprazole. That medication was to be discontinued as it was non-formulary and Pepcid and antacid tablets were prescribed. When seen in the VA outpatient clinic in April 2005, it was noted that the veteran weighed 206 pounds. His abdomen was nontender. A July 2005 VA medical record reveals that the veteran was seen for follow up of other physical disorders. At that time, he weighed 189.6 pounds. His abdomen was soft and nontender. The examiner noted that the veteran's dysphagia was stable on Pepcid. An October 2005 VA record indicates that the veteran was seen for follow up and had no acute problems. He weighed 191.5 pounds. His abdomen was soft and non tender and dysphagia was stable on Pepcid. III. Legal Analysis The present appeal involves the veteran's claim that the severity of his service-connected gastrointestinal disability warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The veteran's service-connected gastrointestinal disability is currently assigned a 40 percent rating under DC 7399-7305. When an unlisted condition is encountered it will be permissible to rate under a closely related disease to injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. A 40 percent evaluation under DC 7305, that evaluates duodenal ulcer, contemplates moderately severe symptoms that are less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. 38 C.F.R. § 4.114, DC 7305. A 60 percent rating is warranted when there is evidence of severe symptoms of pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena with manifestations of anemia and weight loss productive of definite impairment of health. Id. A 40 percent evaluation is not afforded under DC 7346 that evaluates hiatal hernia. 38 C.F.R. § 4.114, DC 7346 (2007). Rather, a 30 percent evaluation contemplates persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent evaluation contemplates 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. Hypertrophic gastritis (identified by gastroscope) is rated under DC 7307. 38 C.F.R. § 4.114, DC 7307 (2007). Under this diagnostic code, a 60 percent rating requires chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas. Id. Atrophic gastritis is a complication of a number of diseases, including pernicious anemia, and is treated based on the underlying condition. Id. Stricture of the esophagus is rated under DC 7203. 38 C.F.R. § 4.114, DC 7203 (2007). A severe stricture of the esophagus, permitted liquids only, warrants a 50 percent rating. Id. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not to be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Weight loss is a criterion for a disability rating higher than currently assigned for the veteran's gastrointestinal disorder under DC 7305. For purposes of evaluating conditions in Section 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two- year-period preceding onset of the disease. See 38 C.F.R. § 4.112 (2007). Upon review of the objective and competent medical evidence of record, the Board is of the opinion that a rating in excess of the currently assigned 40 percent is not warranted for the veteran's service-connected gastrointestinal disability. As noted, under DC 7305, a 60 percent rating is applicable if the gastrointestinal disorder is severe, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. Here, the probative medical evidence fails to show that the veteran has hematemesis, melena, or anemia. While the record includes his complaint of dysphagia, with occasional diarrhea and some nausea and vomiting, and some evidence of weight loss, his symtoms simply do not meet the criteria for a 60 percent rating under DC 7305. During his VA examination in August 2004, and in the VA medical records, the veteran indicated that he had difficulty swallowing and that food got stuck about once a day that he then vomited up. There was no clinical evidence of epigastric tenderness and VA physicians, in January and April 2004, noted that the veteran was asymptomatic on his prescribed medication. In July and October 2005, VA physicians reported that the veteran's condition was stable on Pepcid. Thus, the veteran's symtoms of difficulty swallowing, intermittent abdominal pain, nausea and vomiting are simply not shown to be productive of a definite impairment of health. Although the veteran has been noted to have abdominal pain, difficulty swallowing, and periodic vomiting in the past, the Board notes that such symptomatology is consistent with the currently assigned 40 percent rating. In the absence of pain only particularly relieved by standard ulcer therapy, and the veteran's own denial of current symptomatology beyond occasional vomiting and difficulty swallowing, the evidence is clearly not in support of a rating in excess of 40 percent. Therefore, the schedular criteria for an increased rating under DC 7305 are not met. Certainly, the Board acknowledges that, during the pendency of the veteran's appeal, he required changes in his prescribed medication for discomfort and pain caused by his gastrointestinal disability. Clearly, his service-connected condition is not cured and requires the use of medication. As such, the Board is of the opinion that the probative medical evidence demonstrates essentially moderately severe impairment due to intermittent episodes of abdominal pain and difficulty swallowing partially relieved by prescribed medication. However, a 60 percent rating under Diagnostic Code 7305 requires a severe impairment, only partially relieved by standard therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. While the veteran experiences difficulty swallowing and pain only partially relieved by medication, his symptoms are to be considered, but are not determinative of the criteria for a 60 percent rating. In fact, VA physicians in January and April 2004 described his dyspghagia as asymptomatic when taking his prescribed medication and, in July and October 2005, described his condition as stable on Pepcid. Overall, his symptoms do not reflect a severe impairment productive of definite impairment of health. Although the veteran's weight has fluctuated during the pendency of his appeal, there is no clinical evidence of material weight loss. Here, the record clearly indicates that examiners encouraged the veteran, who is 5 feet 2 inches tall, to lose weight. In June 2002, he weighed 195, in February 2003 he weighed 2001 and, in April 2004, he weighed 210 pounds, a gain of almost 15 pounds over two years. However, in November 2003, hypothyroidism was diagnosed and thyroid replacement medication was prescribed. While the August 2004 VA examiner noted that the veteran had a slight weight gain it was attributed to drinking a lot of soda. In October 2005, the veteran weighed 191 pounds, only 4 pounds less than his June 2002 weight. The veteran's service-connected gastrointestinal disability includes hiatal hernia. Significantly, under DC 7346, a 60 percent rating is warranted where the evidence shows symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or where the evidence shows other symptom combinations productive of severe impairment of health. The evidence of record indicates that the veteran has difficulty swallowing, intermittent abdominal pain, and occasional vomiting; however, he does not have material weight loss, hematemesis or melena, or even moderate anemia. Although the February 2003 VA medical record indicates that the veteran had GERD, his gastrointestinal symptoms have not resulted in severe impairment of health. The Board finds, therefore, that the criteria for a higher rating based on the criteria for a hiatal hernia are not met. Furthermore, despite the veteran's report of difficulty swallowing, there is no evidence of severe stricture of the esophagus permitted liquids only, such as to warrant a 50 percent rating under DC 7203. Because the criteria for a higher rating are not met under any of the relevant diagnostic codes, the Board has determined that the preponderance of the evidence is against the veteran's claim of entitlement to a disability rating in excess of 40 percent for a gastrointestinal disability. The Board also finds that the manifestations attributable to the combination of acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, post- operative esophageal rupture, are not of such severity as to warrant elevation to a 60 percent evaluation. Acid peptic disease with reflux and hiatal hernia are co-existing diseases that do not lend themselves to distinct and separate evaluations without violating the rule against pyramiding. See 38 C.F.R. §§ 4.113 and 4.114 (2007). Thus, despite his reported symtoms, there is no medical record reflecting that symtoms of the veteran's service- connected gastrointestinal disability resulted in definite impairment of health. None of the clinical records indicate that the veteran is in a poor state of health or nutrition and as, noted, he was urged to lose weight. A 60 percent evaluation is warranted for symtoms productive of definite impairment of health. As definite impairment of health has not been shown, the criteria for a higher rating under DC 7305 are not met. The Board recognizes that the veteran experiences frequent and regular symtoms associated with his service-connected gastrointestinal disability. Nevertheless, based upon the objective evidence of record described above, the Board concludes that the preponderance of the medical evidence is against his claim for a rating in excess of 40 percent for his service-connected acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, post- operative esophageal rupture. Moreover, the evidence is not so evenly balanced as to allow for the application of reasonable doubt. 38 U.S.C.A. § 5107(b). Finally, an increased rating could apply if the case presented an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b) (1) (2007). The evidence does not show that the veteran's service-connected gastrointestinal disability has resulted in frequent hospitalizations. In addition, the evidence does not show that the gastrointestinal disability has caused marked interference with employment, e.g. wage statements, sick leave reports, employers' statements. Accordingly, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. ORDER A rating in excess of 40 percent for the veteran's service- connected acid peptic disease with reflux esophagitis, hiatal hernia, and esophageal stricture, post-operative esophageal rupture is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs