Citation Nr: 1037872 Decision Date: 10/06/10 Archive Date: 10/15/10 DOCKET NO. 06-21 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for esophagitis, status post fundoplication. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran had active service from March 1989 to March 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge in May 2009. A transcript of the hearing has been associated with the claims file. In June 2009, the Board remanded this matter for further development. The required development having been completed, adjudication on the merits may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's esophagitis, status post fundoplication, has been manifested by epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain, but these symptoms have not been productive of considerable impairment of health. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for esophagitis, status post fundoplication, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.114, Diagnostic Code 7399-7346 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to increased rating claims, VA must provide the claimant with generic notice of the evidence needed to substantiate the claim, namely evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and of how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran submitted his claim in February 2003. He was notified by letter dated later that month of the evidence required to establish entitlement to an increased rating, the evidence not of record necessary to substantiate his claim for a increased rating, and his and VA's respective duties for obtaining evidence. In March 2004, the RO issued a rating decision denying the Veteran's claim. A letter dated in March 2009 notified the Veteran of how VA determines disability ratings and effective dates for service-connected disabilities. Given the above timeline, VA's duty to notify was not satisfied prior to the initial unfavorable decision by the AOJ. "Various post-decisional communications from which a Veteran might have been able to infer what evidence the VA found lacking in his presentation" are not sufficient to cure notice timing errors. However, they may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, the timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). The Board finds that the notice timing error in this case was not prejudicial to the Veteran. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that determinations concerning prejudicial error should be made on a case-by-case basis); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). It essentially has been cured. Subsequent to the initial unfavorable decision by the AOJ, the notice provided to the Veteran was completed. He was given time to respond before his claim then was readjudicated by way of SSOCs dated in April 2009 and June 2010. He further was afforded, and took advantage of, the opportunity to participate effectively in the processing of his claim by appearing for a Video Conference hearing. As, such, the duty to notify has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records as well as providing a medical examination and/or obtaining a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been obtained. VA treatment records also have been obtained. No relevant private treatment records have been obtained. The duty to assist is not applicable in this regard, however, as the Veteran has not identified any such records. See 38 U.S.C.A. § 5103A(b). He was afforded a VA examinations in March 2003, October 2003, and October 2009. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. Hence, the Board finds that all necessary development has been accomplished, and no further assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Higher Evaluation The Veteran seeks a higher evaluation for esophagitis, status post fundoplication. He contends that this disability is more severe than contemplated by a 10 percent rating. Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service- connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings. Id.; 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. When two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased rating claim if distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. The Veteran's esophagitis, status post fundoplication, currently is rated by analogy to hiatal hernia under 38 C.F.R. §4.114, Diagnostic Code 7399-7346. Pursuant to this Diagnostic Code, a 10 percent disability rating is assigned when there are two or more symptoms for the 30 percent rating of less severity. A 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum 60 percent disability rating requires symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. "Less severity," "considerable impairment," and "severe impairment" are not defined in the Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that the decision reached will be "equitable and just." 38 C.F.R. § 4.6. Additional Diagnostic Codes pertaining to disabilities of the digestive system afford disability ratings higher than 10 percent. Of particular note in this case is Diagnostic Code 7203, which pertains to stricture of the esophagus. However, VA regulations mandate that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. 38 C.F.R. § 4.114. A single evaluation instead 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 evaluation. Id. The Board finds that Diagnostic Code 7346 addresses several of the Veteran's symptoms whereas Diagnostic Code 7203 addresses only the symptom of stricture, for which, as will be revealed below, there is somewhat contradictory evidence. Diagnostic Code 7346 therefore reflects the Veteran's predominant disability picture. VA treatment records dated in May 2002 document the Veteran's complained of severe stomach pain and nausea. They further document that he was eating a usual amount and that Prilosec had been helpful in the past. Upon physical examination, the Veteran's abdomen was tender over the xiphoid process. An impression of peptic castritis was made. Rabeprazole was prescribed. VA treatment records dated in July 2002 reflect that the Veteran complaints of heart burn, daily episodes of nausea, and dry heaves but an inability to vomit. Upon examination, he weighed 169 pounds. His abdomen was soft and nontender. The Veteran's prescription for rabeprazole was increased. VA treatment records dated in November 2002 reveal that the Veteran still was experiencing frequent episodes of nausea, abdominal pain, dry heaves, and an inability to vomit. As a result, they further reveal that rabeprazole was ineffective. In March 2003, the Veteran was afforded a VA esophagus and hiatal hernia examination. He reported the ability to consume liquid as well as solid food but some pain in the epigastrium abdominal area and occasional diarrhea, for which he takes medication. He denied dysphagia, hematemesis, melena, nausea, and vomiting. The Veteran was found to be 150 pounds, which was noted not to be reflective of recent weight gain or loss. His nutrition also was noted to be good. Further examination revealed that his abdomen was soft, with a well-healed surgical scar. There was no sign of anemia or regurgitation. X-rays revealed a paraesophageal hernia. The Veteran was diagnosed with postoperative repair, diaphragmatic hernia in 1993, and paraesophageal hernia. Statements dated in June 2003 from A.H., the Veteran's wife, B.H., an individual of unknown relation to the Veteran, and J.B., the Veteran's friend, identified daily nausea and vomiting, stomach cramps, and weight loss as the Veteran's pertinent symptoms. The Veteran was afforded a VA stomach, duodenum, and peritoneal adhesions examination in October 2003. He indicated that he takes rabeprazole twice a day. Although he reported nausea frequently associated with smells and after eating, he denied vomiting, hematemesis, melena, diarrhea, and constipation. Upon physical examination, the Veteran's weight was found to be stable at between 154 to 156 pounds. No signs of anemia were found, and there was no stomach pain or tenderness. Reference was made to X-rays which revealed a paraesophageal hernia. A diagnosis of status post Nissen fundoplication was made. A VA treatment record dated in April 2004 contains the Veteran's complaint of nausea, vomiting, swallowing difficulty, and heart burn. It also contains an indication that his abdomen was soft and nontender. In addition to the information in the April 2004 VA treatment record, June 2004 VA treatment records note that the Veteran's dysphagia began approximately two months after his 1993 Nissen fundoplication and gradually has gotten worse. However, they also note that he has not experienced weight loss. Finally, these records reflect that his abdomen was soft. Dysphagia was diagnosed. VA treatment records dated in August 2004 note the Veteran's report of heart burn, difficulty swallowing, nausea, vomiting, and substernal stomach pain as well as shoulder pain after vomiting. Further note was made regarding him being following for periodic stretching of his esophagus. An October 2004 VA treatment record references an esophagogastroduodenoscopy (EGD) performed in July 2004. No reflux epigastritis or gastric or esophageal tumor was found. Nevertheless, the Veteran complained of heart burn. He indicated, however, that medication helps. An assessment of gastroesophageal reflux disease (GERD) was provided, and the Veteran was instructed to continue taking omeprazole up to twice daily. A VA treatment record dated in December 2004 indicates that the Veteran occasionally experiences diarrhea, which was not a problem. In a January 2005 statement, the Veteran asserted that he has dysphagia, pyrosis, regurgitation, and associated arm and shoulder pain. At his May 2009 Video Conference hearing, the Veteran testified that he has had his esophagus stretched approximately 6 times. He then indicated that he takes stomach medication as well as hydrocodone for pain. Without these medications, he indicated that he almost cannot get out of bed and vomits every day. The Veteran finally described his current symptomatology, which included heart burn, pain when swallowing or vomiting, pain going up his shoulders and into his arms when he vomits, and feeling like food "hangs up" near the site of his 1993 fundoplication procedure. Another VA esophagus and hiatal hernia examination was afforded to the Veteran in October 2009. The examiner interviewed him regarding the history of his disability and his current symptomatology. In the former regard, he reported having an esophageal dilation in June or July 2004. In the latter regard, he reported epigastric distress and heart burn several times per day; daily nausea, vomiting, dysphagia and regurgitation; pain in both shoulders; and feeling like the solids, and sometimes the liquids, he ingests get stuck for a few minutes near his sternum. He also reported that these symptoms were not relieved completely by the omeprazole and hydrocodone he takes. However, he denied hematemesis and melena. The examiner then physically examined the Veteran. He was found to be in good overall general health upon examination. His abdomen was mildly tender, but only over his surgical scar. No evidence of anemia was found. Next, the examiner reviewed the Veteran's available treatment records. Included among these were October 2008 X-rays which revealed a moderate size fixed hiatal hernia but no evidence of stricture or ulceration. Also included were October 2009 X-rays which revealed a moderately large sliding hiatal hernia and mild to moderate gastroesophageal reflux. An impression of moderately large sliding hiatal hernia with mild to moderate gastroesophageal reflux was made by the examiner. He then noted that the Veteran was a construction worker, was currently unemployed due to the economy but was not retired, and experienced significant effects, such as increased tardiness and absenteeism, as a result of his disability. Finally, the examiner opined that there was objective evidence of GERD and a moderately large hiatal hernia, but no objective evidence of esophagitis given that no lesions were found in the esophagus. He also opined that the Veteran's subjective symptoms "certainly interfere with" his occupation and daily life. The Board finds that the next highest disability evaluation in excess of 10 disabling for esophagitis, status post fundoplication, is not warranted under Diagnostic Code 7346. Although some were not consistent throughout the entire period on appeal, the record reveals that the Veteran's disability was manifested by symptoms of epigastric distress, dysphagia, pyrosis, regurgitation, and substernal stomach pain as well as pain in his shoulders and arms. The record further reveals that the Veteran's disability was manifested by additional symptoms such as feeling like solid and sometimes liquid food gets stuck or "hangs up" for a few minutes, severe stomach and abdominal pain, stomach cramps, nausea, dry heaves, vomiting, occasional diarrhea, and some weight loss. However, these symptoms were not productive of considerable impairment of health. Although the VA examiner who conducted the October 2009 esophagus and hiatal hernia examination opined that the Veteran's symptoms "certainly interfere with" his occupation and daily life, he characterized the Veteran's overall general health as good. There is no indication from the other evidence that his health merited any other characterization earlier during the period on appeal. The Veteran's nutrition was noted to be good in March 2003 despite his symptoms. Since at least October 2004, he has indicated that his medication regimen helps minimize his symptoms. The Board further finds that the highest disability evaluation is not warranted under Diagnostic Code 7346 for the Veteran's esophagitis, status post fundoplication. There is no indication that he experienced hematemesis or melena with moderate anemia at any point during the period on appeal. There also is no indication that he experienced other symptom combinations productive of severe impairment of health. Indeed, as noted above, his symptoms do not result in even considerable health impairment. Accordingly, the preponderance of the evidence is against the Veteran's claim of entitlement to a disability evaluation in excess of 10 percent for esophagitis, status post fundoplication, during any portion of the period on appeal. Staged ratings thus are not warranted, and the benefit of the doubt rule does not apply. III. Extraschedular Consideration The above determination continuing the Veteran's 10 percent evaluation for his esophagitis, status post fundoplication, is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. The Board notes that there is no indication that referral for consideration of the assignment of a disability rating on an extraschedular basis is warranted. See 38 C.F.R. § 3.321(b). The Court recently clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's esophagitis, status post fundoplication, could not be contemplated adequately by the applicable schedular rating criteria discussed above. Each of his symptoms, which together indicate his level of disability, was considered pursuant to these criteria and associated statutes, regulations, and caselaw. Higher ratings are provided for by the criteria, but, as explained above, the currently assigned rating adequately describes the severity of the Veteran's disability. There also has been no showing that the Veteran's esophagitis, status post fundoplication, resulted in marked interference with employment. The VA examiner who conducted the Veteran's October 2009 esophagus and hiatal hernia examination noted that the Veteran experienced significant effects, namely increased tardiness and increased absenteeism, due to his disability when employed as a construction worker. No more substantial effects were noted, however. There further has been no showing that the Veteran's esophagitis, status post fundoplication, has required frequent periods of hospitalization. While the Veteran indicated at his October 2009 VA esophagus and hiatal hernia examination that he was hospitalized in 1993 for his Nissen fundoplication, he denied any other hospitalizations. Given that the applicable schedular rating criteria are adequate and that the Veteran's esophagitis, status post fundoplication, disability picture does not include exceptional factors, referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability evaluation in excess of 10 percent for esophagitis, status post fundoplication, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs