Citation Nr: 0030068	
Decision Date: 11/16/00    Archive Date: 11/22/00

DOCKET NO.  95-21 071	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Louisville, 
Kentucky


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for 
duodenal ulcer disease and hiatal hernia with 
gastroesophageal reflux disease.


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

L. J. Nottle, Counsel



INTRODUCTION

The veteran served on active duty from June 1966 to June 
1968.  His claim comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 1994 rating decision, in which 
the Louisville, Kentucky, Department of Veterans Affairs (VA) 
Regional Office (RO) granted the veteran service connection 
and assigned him a noncompensable evaluation for duodenal 
ulcer disease, effective from April 7, 1994.  In May 1995, 
the RO increased the evaluation assigned the veteran's 
duodenal ulcer disease to 20 percent, effective from April 7, 
1994.  In May 1998, the Board granted the veteran service 
connection for hiatal hernia secondary to duodenal ulcer 
disease.  In June 1998, the RO effectuated the Board's 
decision and recharacterized the veteran's digestive system 
disability as duodenal ulcer disease and hiatal hernia with 
gastroesophageal reflux disease.  In March 1999, the Board 
remanded the veteran's claim for an evaluation in excess of 
20 percent to the RO for additional development. 


FINDINGS OF FACT

1.  The veteran's service-connected digestive system 
disability, which currently includes a small hiatal hernia 
and gastroesophageal reflux disease, is manifested by 
epigastric distress with dysphagia when the veteran is not on 
medication. 

2.  The veteran's digestive system disability picture is not 
so exceptional or unusual 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.



CONCLUSION OF LAW

The evidence does not satisfy criteria for an evaluation in 
excess of 20 percent for duodenal ulcer disease and hiatal 
hernia with gastroesophageal reflux disease.  38 U.S.C.A. §§ 
1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 
4.7, 4.10, 4.14, 4.21, 4.114, Diagnostic Codes 7305, 7346 
(2000).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran claims that the evaluation initially assigned his 
digestive system disability should be increased to reflect 
more accurately the severity of his symptomatology.  The 
Board is satisfied that the VA has fulfilled its duty to 
assist the veteran by obtaining and fully developing all 
relevant evidence necessary for the equitable disposition of 
his claim for a higher evaluation.

Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities (rating schedule).  38 
U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 
(2000).  If two 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 (2000).  Where an award of service connection 
for a disability has been granted and the assignment of an 
initial evaluation for that disability is disputed, separate 
evaluations can be assigned for separate periods of time 
based on the facts found.  In other words, the evaluations 
may be "staged."  Fenderson v. West, 12 Vet. App. 119, 126 
(1999).

In this case, the RO has evaluated the veteran's digestive 
system disability as 20 percent disabling under 38 C.F.R. § 
4.114, Diagnostic Code 7305; however, it has also considered 
whether the veteran is entitled to a higher evaluation under 
38 C.F.R. § 4.114, Diagnostic Code 7346.  Diagnostic Code 
7305 provides that a moderate duodenal ulcer with recurring 
episodes of severe symptoms two or three times a year 
averaging 10 days in duration; or with continuous moderate 
manifestations warrants a 20 percent evaluation.  A 
moderately severe duodenal ulcer, which is less than severe 
but with impairment of health manifested by anemia and weight 
loss; or recurrent incapacitating episodes averaging 10 days 
or more in duration at least four or more times a year 
warrants a 40 percent evaluation.  A severe duodenal ulcer 
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, warrants a 60 percent 
evaluation.  38 C.F.R. § 4.114, Diagnostic Code 7305 (2000).

Diagnostic Code 7346 provides that a 30 percent evaluation is 
warranted where there are symptoms of persistently recurrent 
epigastric distress with dysphagia, pyrosis, and 
regurgitation, accompanied by substernal or arm or shoulder 
pain, productive of considerable impairment of health.  A 60 
percent evaluation is warranted where a hiatal hernia is 
manifested by symptoms of pain, vomiting, material weight 
loss and hematemesis or melena with moderate anemia; or other 
symptom combinations productive of severe impairment of 
health.  For the reasons noted below, the Board finds that 
the veteran's digestive system disability picture more nearly 
approximates the criteria for a 20 percent evaluation, and 
that the preponderance of the evidence is against an 
evaluation in excess of 20 percent for this disability under 
Diagnostic Codes 7305 and 7346.

The veteran served on active duty from June 1966 to June 
1968.  During this time period, he complained of and was 
treated for indigestion, occasional burning abdominal pain 
and bloody vomiting and was diagnosed with a shallow active 
ulcer of the duodenal bulb and peptic disease.  

Post-service medical records, specifically, private and VA 
outpatient treatment records and hospitalization reports, an 
October 1984 letter from Jerry L. Yon, M.D., an August 1994 
letter from J.K. Phillips, Jr., M.D., and an April 1998 
letter from Craig N. Bash, M.D., reflect that the veteran has 
regularly sought and received treatment for nausea, vomiting 
and epigastric pain since his discharge from service.  During 
this time period, pallor and a tender abdomen have 
occasionally been noted and peptic esophagitis, 
gastroenteritis, gastritis, a hiatal hernia (for which he 
underwent a repair in August 1997), a Schatzkis ring, 
gastroesophageal reflux disease and peptic ulcer disease have 
been diagnosed. 

According to Dr. Phillips, as of 1994, the veteran's symptoms 
were manifesting at regular intervals several times per year 
and would likely require long term maintenance with 
medication and therapy.  Medical evidence dated after 1994 
indicates that Dr. Phillips was correct in predicting the 
veteran's continued need for medication.  However, the same 
evidence establishes that the veteran has not been diligent 
in taking the various medications prescribed by physicians 
despite indications that he responds well to such medications 
when they are taken.

During VA examinations conducted over the years, VA examiners 
have objectively confirmed that the veteran had mild 
distention of the abdomen (May 1994), tenderness over the 
right upper quadrant subcostal region without rebound pain 
(May 1994), gastroesophageal reflux (July 1995), slight 
tenderness in the right lower quadrant of the abdomen (July 
1998), and epigastric distress with dysphagia when he is off 
his medications (June 1999).  

There is no medical evidence of record establishing that, 
since 1994, when he was assigned a 20 percent evaluation for 
his digestive system disability, the veteran has had a 
moderately severe duodenal ulcer manifested by anemia and 
weight loss, or recurrent incapacitating episodes averaging 
10 days or more in duration at least four or more times a 
year.  First, during the most recent VA examination in June 
1999, the VA examiner noted, in reference to duodenal ulcers, 
that the veteran did not exhibit any of the signs and 
symptoms of peptic ulcer disease.  Second, even assuming all 
of the symptoms exhibited by the veteran prior to June 1999 
were caused by a duodenal ulcer, based on the veteran's own 
statements, a higher evaluation would not be warranted under 
38 C.F.R. § 4.114, Diagnostic Code 7305 (2000).  During VA 
examinations conducted from 1994 to 1999, the veteran 
admitted that he had not lost weight as a result of his 
disability and anemia was never shown.  Moreover, although 
the veteran reported that he suffered 120 episodes of 
epigastric pain per year, these episodes were described as 
lasting "usually one hour, less than a day."  The veteran 
never reported that they lasted 10 days or more and were 
incapacitating.  

There is also no medical evidence of record establishing 
that, since 1994, the veteran has persistently had recurrent 
epigastric distress with dysphagia, pyrosis, and 
regurgitation, accompanied by substernal or arm or shoulder 
pain, productive of considerable impairment of health.  
Rather, on multiple occasions, the veteran has admitted that 
he is able to control his epigastric distress when he takes 
his medications.  This fact was confirmed during the June 
1999 VA examination, when the VA examiner indicated that the 
veteran's epigastric distress with dysphagia manifested only 
when the veteran was off his medications.  Regardless, even 
during active periods, physicians have not objectively 
confirmed substernal, arm, or shoulder pain or opined that 
the veteran's health was considerably impaired by his 
digestive system disability.  In fact, in August 1994, Dr. 
Phillips classified the veteran's disability as being only 
"partially disabling."  

In light of these findings, the Board concludes that the 
veteran's digestive system disability picture more nearly 
approximates the 20 percent evaluation that is currently 
assigned.  In the absence of evidence of a moderately severe 
duodenal ulcer or persistently recurrent epigastric distress 
with dysphagia, pyrosis, and regurgitation, accompanied by 
substernal or arm or shoulder pain and producing considerable 
impairment of health, a higher evaluation under DC 7305 or 
7346 may not be assigned. 

Having determined that a higher schedular evaluation is not 
warranted, the Board notes that there is no indication in 
this case that the schedular criteria are inadequate to 
evaluate the veteran's disability.  While the veteran has 
asserted some interference with employment, there is no 
showing that the disability under consideration has caused 
marked interference with employment (beyond that contemplated 
in the assigned evaluation), or necessitated frequent periods 
of hospitalization, or that it otherwise renders 
impracticable the application of the regular schedular 
standards so as to warrant assignment of an extra-schedular 
evaluation.  In the absence of such factors, the Board is not 
required to remand this matter to the RO for the procedural 
actions outlined in 38 C.F.R. § 3.321(b)(1).  See 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).

Finally, the Board recognizes that the rating schedule is 
designed to accommodate changes in condition, and that the 
veteran may be awarded a higher evaluation in the future 
should his disability picture change.  See 38 C.F.R. § 4.1.  
At present, however, the Board reiterates that the veteran's 
digestive system disability picture more nearly approximates 
the currently assigned 20 percent evaluation.  In a case such 
as this, where the evidence is not in relative equipoise, the 
Board cannot afford the veteran the benefit of the doubt, 
under 38 U.S.C.A. § 5107(b) (West 1991), in resolving his 
claim.  


ORDER

An evaluation in excess of 20 percent for duodenal ulcer 
disease and hiatal hernia with gastroesophageal reflux 
disease is denied.



		
	WARREN W. RICE, JR.
	Veterans Law Judge
	Board of Veterans' Appeals