Citation Nr: 0900364 Decision Date: 01/06/09 Archive Date: 01/14/09 DOCKET NO. 06-10 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a higher initial rating for gastroesophageal reflux disease (GERD)/gastritis, currently rated at 30 percent. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Jason Barlow, Associate Counsel INTRODUCTION The veteran had active military service from August 1980 to April 1985. This matter comes to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which granted service connection for GERD/gastritis assigning a 30 percent rating, effective November 2002. FINDINGS OF FACT 1. The veteran has symptoms from his GERD/gastritis, including acid reflux, cramping, weight loss, nausea, vomiting, and esophageal distress, but he has been found to have generally good health. 2. The veteran can swallow solid foods, and there is no evidence he has severe hemorrhages, or large ulcerated or eroded areas due to gastritis. CONCLUSION OF LAW The criteria for a higher initial rating for GERD/gastritis, currently rated at 30 percent, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.114, Diagnostic Codes 7203, 7307 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice regarding the initial service connection claim by letter dated in February 2003. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate the claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with the notice of the criteria for assigning disability ratings and effective dates in March 2006, February 2008 and April 2008, and the claim was readjudicated in a September 2008 supplemental statement of the case. While the veteran was not provided a VA letter outlining all of the evidence necessary to substantiate an initial increased rating claim, including the diagnostic criteria for the disability at issue and notice that the veteran should submit evidence regarding the disability's effect on his employment and daily life, the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. Dingess v. Nicholson, 19 Vet. App. at 490 (2006). As the veteran was granted service connection and assigned an evaluation and effective date, the Secretary had no obligation to provide further notice under the statute. Id. As such, any defect with respect to the content of the notice requirement was non-prejudicial. The veteran has not alleged any prejudice as a result of untimely notification, nor has any been shown. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the severity of the veteran's GERD/gastritis. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The veteran asserts that he is entitled to an initial rating in excess of 30 percent for GERD/gastritis based on his current symptoms. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The regulations provide that 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. See 38 C.F.R. § 4.113 (2007). Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The veteran's GERD/gastritis is currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7307-7203. Diagnostic Code 7307 provides that a 30 percent rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms, and a 60 percent rating is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. C.F.R. § 4.114, Diagnostic Code 7307. Under Diagnostic Code 7203, stricture of esophagus, a 30 percent rating requires moderate stricture, a 50 percent rating requires severe stricture, permitting liquids only, and an 80 percent rating requires passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, Diagnostic Code 7203. The evidence shows that the veteran complained of severe acid reflux, burning epigastric area, and dyspepsia in October 2002 and December 2002 at a VA health center; weight was 209 and 212 pounds. A July 2003 private medical record indicates similar problems; weight was 209 pounds. At an August 2005 VA examination the veteran reported a greasy substance coming up in his mouth on a daily basis with no pain. The veteran also reported abdominal cramping. The VA examiner noted symptoms of heartburn, upper abdomen pain or discomfort and regurgitation along with daily nausea or vomiting of moderate severity and lasting one or more hours. There was no significant weight loss or malnutrition. The VA examiner noted an imaging study revealed moderate gastroesophageal reflux with an otherwise negative upper gastrointestinal series. The veteran was diagnosed with GERD and gastritis. A private medical record of November 2005 showed complaints of increased reflux symptoms and water brash. There was no solid food dysphagia, hematemesis or melena. In April and May 2006 statements, friends of the veteran stated that they witnessed his weight loss and vomiting brown material. In January 2007 the veteran underwent another physical examination, and the VA doctor noted the veteran appeared robust and healthy upon physical examination. An abdominal examination showed no hepatosplenomegaly or mass, though the veteran complained of tenderness. The doctor noted that the veteran had lost 20 percent of his weight compared to the baseline, but she indicated there were no signs of significant weight loss or malnutrition. At that examination, the veteran was 68.5 inches tall and weighed 198 pounds. The veteran's symptoms included daily nausea, vomiting, dysphagia, esophageal distress, heartburn, and regurgitation. The VA doctor noted that the veteran could always swallow solid food. The VA doctor diagnosed the veteran with GERD. The veteran underwent a biphasic upper gastrointestinal imaging series in February 2007 and normal esophageal motility was observed. The esophagus demonstrated normal mucosal features. The stomach had mildly thickened rugal folds, and the portion of the small bowel that was visualized was unremarkable. The examining radiologist's impression was mildly thickened gastric folds consistent with chronic gastritis. The veteran underwent another VA examination in July 2008, and the VA doctor noted the veteran was in good health. He found no symptoms of hematemesis, melena, or anemia, and the veteran could swallow solid food most of the time. Weight was 182.1 pounds, and overall general health was good. However, the doctor did find symptoms of nausea, dysphagia, pain, heartburn, and he diagnosed the veteran with chronic gastritis. He stated that the veteran's upper gastroinstestinal findings were out of proportion to physical findings and laboratory testing performed in the past. The competent evidence does not support that the veteran has chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas to warrant a 60 percent rating under Diagnostic Code 7307. Upper gastrointestinal series in 2005 and 2007 failed to demonstrate such manifestations of gastritis. In his January 2006 Notice of Disagreement the veteran alleges that he is limited to ingesting only liquids. However, the January 2007 and July 2008 VA examinations indicated that the veteran could swallow solid foods, and there is no medical evidence indicating he is limited to ingesting only liquids. Accordingly, the veteran is not entitled to a 50 percent or greater rating under Diagnostic Code 7203. Diagnostic code 7346 is another potentially applicable Diagnostic Code. Under this code, a 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A rating of 60 percent is warranted 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. The veteran has symptoms of recurrent epigastric distress consistent with a 30 percent rating, but there is no evidence he has chronic symptoms of material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Moreover, the January 2007 and July 2008 VA examinations found the veteran in good health. The veteran clearly had weight loss, but the VA doctor declined to find that the veteran suffered from malnutrition and did not indicate the weight loss involved a severe impairment of health. Although the veteran's friends report witnessing him vomit brown material, examinations before and after those statements were written indicate that the veteran did not have hematemesis. Accordingly, the veteran is not entitled to a 60 percent rating under this code. Because the veteran does not have ulcer disease, rating under Diagnostic Code 7305 for duodenal ulcer would be inappropriate. Consideration has been given to assigning a staged rating; however, during the entire period in question the Board finds that the veteran's GERD/gastritis has warranted a 30 percent disability rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Board has considered whether the veteran's claim should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2007). The record reflects that the veteran has not required frequent hospitalizations for his service-connected GERD/gastritis. Additionally, there is no other indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the 30 percent disability rating granted herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and entitlement to a higher initial rating for GERD/gastritis, currently rated at 30 percent, is not warranted. Gilbert v. Derwinski, 1 Vet. App. At 57-58. ORDER Entitlement to a higher initial rating for GERD/gastritis, currently rated at 30 percent, is denied. ____________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs