Citation NR: 9705746 Decision Date: 02/20/97 Archive Date: 03/04/97 DOCKET NO. 94-35 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased disability evaluation for esophageal stricture, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from November 1942 to July 1945. This case returns to the Board of Veterans’ Appeals (Board) from remand dated in August 1996. The requested development has been completed and the case returned to the Board for completion of appellate review. This appeal originates from a decision dated in July 1993 by the Jackson, Mississippi, Department of Veterans Affairs Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his esophageal stricture, at times, prevents him from swallowing liquids or solids for five to six days, and therefore warrants a 50 percent disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran’s claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against entitlement to an increased disability evaluation for esophageal stricture. FINDING OF FACT The appellant’s esophageal stricture is manifested by a stricture approximately 39 cms. from his incisors and is productive of significant dysphagia, especially to solid foods with discomfort and/or pain requiring regular dilation, but is not shown to limit ingestion to liquids only. CONCLUSION OF LAW The schedular criteria for a 50 percent disability evaluation for esophageal stricture are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Diagnostic Code 7203 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION Increased Disability Evaluation Initially, the Board finds that the appellant’s claim to an increased disability evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) based upon his allegations of increased disability since his last evaluation. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1994). The average impairment is set forth in the VA’s SCHEDULE FOR RATING DISABILITIES, codified in C.F.R. Part 4 (1995), which includes Diagnostic Codes which represent particular disabilities. The pertinent Diagnostic Codes and provisions will be discussed below as appropriate. While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Background In February 1987, the RO granted service connection for an esophageal stricture and assigned a noncompensable disability evaluation effective from November 19, 1986. The rating board noted that the esophageal stricture was identified during VA hospitalization in November 1986 and was considered to be due to the surgery performed for the service-connected duodenal ulcer disease. It was further noted that the esophageal stricture was dilated during hospitalization and that there was no additional evidence to establish the presence of symptoms such to warrant a compensable disability evaluation. A VA hospitalization report covering the period from June 14 to 16, 1993 noted that the appellant was admitted for progressive difficulty swallowing solids. It was noted that he was last dilated in 1991 and that he had no significant dysphagia since then until approximately two months prior to the immediate hospitalization. On examination the appellant weighed 171.4 lbs, which had not changed since November 1992. He was found to be well-developed and well-nourished and in no acute distress. The appellant underwent esophagogastroduodenoscopy which noted the presence of a stricture at 38 cm. and no other significant abnormalities. It was further noted that the appellant did not demonstrate any significant dysphagia, either before or after the examination and it was determined that no additional dilatation was required at this point. The discharge diagnoses included esophageal stricture requiring regular dilatations. A VA hospitalization report covering the period from October 18 to 20, 1993 noted that the appellant was admitted for esophageal dilatation. The appellant reported that he had difficulty swallowing meat but otherwise had no recent dysphagia. He underwent esophagogastroduodenoscopy with dilatation. No significant abnormalities were noted and the diagnosis was esophageal stricture, status post dilatation. In August 1996, the appellant underwent an upper endoscopy procedure. It was noted that there was a stricture 39 cm. from the incisors with an opening of 11 mm. The endoscope could not be passed beyond the area of the stricture. Esophageal dilation was conducted and no other significant abnormalities were found. The impression was esophageal stricture with successful dilation. The recommendations included esophageal dilation every 6 months. In September 1996 a VA examination was conducted. The appellant reported that he began having difficulty with swallowing five days after his surgery for a bleeding ulcer approximately 20 years ago. He indicated that he was diagnosed with a stricture which subsequently required dilatation. He currently requires dilatation every three months and was last dilated in August 1996 when he had food lodged in his mid-esophageal area. He reported that when he has a solid food blockage, he is forced to vomit for relief. On physical examination the appellant was noted to weigh 178 lbs. and that he was well-developed and well-nourished. An esophogram and upper gastrointestinal (UGI) series were conducted which noted findings of narrowing at the esophagogastric junction, a large hiatal hernia and deformity of the gastric antrum and proximal duodenum. The diagnosis was esophageal stricture disease, status post dilatations. In October 1996, the appellant’s case was evaluated by Dr. Anastosios A. Mihas, Staff Physician, Gastroenterology Section, VA Medical Center, Jackson, MS. He indicated that the appellant had been followed by the Gastrointestinal (GI) Section for a chronic esophageal stricture. The most recent UGI in August 1996, (noted above) revealed that the aperture of the stricture was less than 11 mm. and was dilated to 13 mm. He further indicated that while the stricture results in significant dysphagia, especially to solid foods with discomfort and/or pain, the resultant disability does not prevent the appellant’s ability to function under modified conditions of daily life including some forms of employment. He further noted that the stricture’s impact upon the appellant’s general health was indisputable and that it was productive of a significant disability. Analysis The appellant’s esophageal stricture is currently evaluated pursuant to Diagnostic Code 7203 which provides that stricture of the esophagus, permitting passage of liquids only, with marked impairment of general health warrants an 80 percent disability evaluation. A severe stricture, permitting the passage of liquids only warrants a 50 percent disability evaluation. An esophageal stricture manifested by moderate symptomatology warrants a 30 percent disability evaluation. After review of the evidence of record, the Board concludes that entitlement to a 50 percent disability evaluation for esophageal stricture is not warranted. While VA examination and evaluation of the appellant’s esophageal condition in 1996 revealed that the aperture of the stricture was less than 11 mm. which was successfully dilated to 13 mm, there were no findings to establish that the stricture was of such severity as to limit the appellant to ingesting only liquids. Dr. Mihas further indicated that while the stricture results in significant dysphagia, especially to solid foods with discomfort and/or pain, the resultant disability does not prevent the appellant’s ability to function under modified conditions of daily life including some forms of employment. Accordingly, in view of the above, and the lack of evidence to establish that the appellant’s esophageal stricture is of such severity as to limit his ingestion to liquids only, the Board concludes that the criteria for a 50 percent disability evaluation have not been met. Other Considerations Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In this case, the appellant’s service-connected esophageal stricture is found to be adequately evaluated pursuant to Diagnostic Code 7203, and no other potentially applicable Diagnostic Code has been identified for this disability Furthermore, in exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of “an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.” 38 C.F.R. § 3.321(b)(1) (1995). In Floyd v. Brown, 9 Vet.App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. In Bagwell v. Brown, 9 Vet.App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board’s denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the veteran’s claim and the veteran had full opportunity to present the increased rating claim before the RO. Bagwell, slip op. at 4. “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 the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). In this case, the RO concluded that the appellant’s esophageal stricture did not present such an exceptional or unusual disability picture as to warrant referral to the Director, Compensation and Pension Service, because the evidence did not show marked interference with employment or frequent periods of hospitalization. After review of the record, the Board affirms the RO’s decision regarding the applicability of the provisions of 38 C.F.R. § 3.321 (1996). The record does not establish frequent periods of hospitalization and a VA physician in October 1996 noted that the appellant’s condition did not prevent his ability to function under modified conditions of daily life including some forms of employment. Findings which are deemed to be adequately contemplated by the current 30 percent disability evaluation. ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -