Citation Nr: 0504179 Decision Date: 02/16/05 Archive Date: 02/24/05 DOCKET NO. 03-00 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to an increased evaluation for a duodenal ulcer, with a hiatal hernia and gastroesophageal reflux, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from September 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2003, the veteran requested a VA Travel Board hearing. However, he failed to report for a scheduled hearing in November 2004 and provided no explanation for his failure to report. Consequently, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2004). FINDINGS OF FACT 1. All relevant evidence necessary to render a decision on the veteran's claim has been obtained by the RO, and the RO has notified him of the type of evidence needed to substantiate his claim. 2. The veteran's duodenal ulcer, with a hiatal hernia and gastroesophageal reflux, is productive of symptoms causing considerable impairment of health. CONCLUSION OF LAW The criteria for a 30 percent evaluation for a duodenal ulcer, with a hiatal hernia and gastroesophageal reflux, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.114, Diagnostic Code 7346 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA - Notice and Assistance In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. Regulations implementing the VCAA have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and implementing regulations apply in the present case, and the requirements therein appear to have been met. In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist him with the development of facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has afforded the veteran multiple VA examinations addressing his service-connected disorder and has obtained records of all relevant treatment that he has described. The Board is also satisfied that the RO met VA's duty to notify the veteran of the evidence necessary to substantiate his claim in letters issued in February 2002 and August 2003. By those issuances, the RO has also notified the veteran of exactly which portion of that evidence was to be provided by him and which portion VA would attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has also been advised that he could help his claim by providing any evidence in his possession. See 38 C.F.R. § 3.159(b)(1). The Board also notes that, in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II, which replaced the opinion in Pelegrini v. Principi, 17 Vet. App. 412 (2004)), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice must be provided to a claimant before the "initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." In Pelegrini II, the Court also made it clear that where notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice complying with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), because an initial RO decision had already occurred. See also VAOPGCPREC 7-2004 (July 16, 2004). In the present increased-rating claim, the veteran was notified of VA's duties under the VCAA, as described above, prior to the first AOJ adjudication of his claim. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). II. Increased Rating - Gastrointestinal Disorder Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity in civil occupations. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See 38 C.F.R. § 4.7. In June 1968, the RO granted service connection for a duodenal ulcer in view of in-service treatment for multiple gastrointestinal symptoms. A 20 percent evaluation was assigned, effective from October 1967. In July 1973, however, the RO reduced this evaluation to 10 percent as of October 1973, in view of improved findings from a June 1973 VA examination. The 10 percent evaluation has remained in effect. The veteran has received VA outpatient treatment for gastrointestinal symptoms on multiple occasions during the pendency of this claim and appeal. In August 2001, he reported frequent vomiting and burning in his throat, and the examiner diagnosed severe gastroesophageal reflux disease (GERD). An October 2001 endoscopy revealed a large sliding hiatal hernia, three small gastric fundic nodules, and no other significant pathology. In February 2002, the veteran reported improved symptomatology, with a resolution of his GERD symptoms. During his January 2003 VA stomach examination, the veteran reported heartburn, indigestion, bloating, and occasional vomiting episodes. His reflux symptoms were reportedly well- controlled with Prilosec. The examination revealed a protuberant abdomen, with no tenderness or masses. The examiner rendered an impression of "very symptomatic" GERD, as well as a "proven" hiatal hernia. No active ulcer was noted, and the veteran's symptoms were noted to be under control with medication. In a June 2003 addendum, the examiner who had conducted the prior VA examination opined that the veteran's large hiatal hernia and reflux esophagitis were all attributable to service and that "[h]e was having lots of gastrointestinal symptoms and still is." Accordingly, the RO expanded the grant of service connection to include such symptoms in a June 2003 rating action. However, the 10 percent disability evaluation was continued. The veteran also underwent a VA general medical examination in March 2004, during which he reported good control of the GERD symptoms with Prilosec. An examination of the abdomen revealed a slightly protuberant abdomen, with normal bowel sounds, mild generalized tenderness across the lower abdomen, no epigastric tenderness, and no masses or organomegaly. The diagnosis was chronic GERD, well controlled on Prilosec. During the course of this appeal, the RO has considered the veteran's disorder, currently evaluated as 10 percent disabling, under the criteria of 38 C.F.R. § 4.114, Diagnostic Codes (DCs) 7305, 7307, and 7346. Under DC 7305, a 10 percent evaluation is warranted for a mild duodenal ulcer, with recurring symptoms once or twice per year. A 20 percent evaluation is in order for a moderately severe ulcer, 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. The next higher, 40 percent evaluation contemplates a moderately severe ulcer, 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. Under DC 7307, a 10 percent evaluation is assigned for chronic hypertrophic gastritis, with small nodular lesions and symptoms. A 30 percent evaluation is in order for multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation is warranted for severe hemorrhages, or large ulcerated or eroded areas. Under DC 7346, a 10 percent evaluation is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 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. A 60 percent evaluation is in order for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. As noted above, the veteran's service-connected disorder has recently been expanded by the RO to include a hiatal hernia, and an October 2001 endoscopy revealed this hiatal hernia to be large. Moreover, while the veteran's symptoms have been noted to be controlled with the use of Prilosec, it is evident from the record that the underlying disorder is significantly disabling. Indeed, this disorder was described as severe in August 2001, and the January 2003 VA examination revealed "very symptomatic" GERD. For these reasons, the Board is not satisfied that the currently assigned 10 percent evaluation adequately contemplates the full scope of the veteran's current disorder. Consequently, the Board has considered the various criteria for a higher evaluation. As noted above, the criteria for a 30 percent evaluation under Diagnostic Code 7346 contemplate considerable impairment of health, with persistently recurrent symptoms. The criteria under this section are, in the view of the Board, consistent with the findings of "very symptomatic" gastric disease. Accordingly, the Board is satisfied that a 30 percent evaluation is warranted in this case. That having been noted, the Board does not find that an even higher evaluation is in order. With regard to DC 7305, there is no indication of a moderately severe ulcer, particularly since the October 2001 endoscopy revealed no current symptoms specific to a duodenal ulcer. The Board also does not find that the veteran's hiatal hernia and gastritis symptoms are severe in degree. While his disorder was described as severe in August 2001, subsequent evaluations have shown good control of symptoms with Prilosec. As the impairment in this case is shown to be considerable rather than severe, a 60 percent evaluation is not indicated under Diagnostic Codes 7307 and/or 7346. Overall, the evidence supports a 30 percent evaluation, but not more, for the veteran's duodenal ulcer, with a hiatal hernia and gastroesophageal reflux. To that extent, the appeal is granted. The Board has based its decision in this case upon the applicable provisions of VA's Schedule for Rating Disabilities. The veteran has submitted no evidence showing that his service-connected gastrointestinal disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent periods of hospitalization during the pendency of this appeal. Therefore, the Board is not required to remand this matter to the RO for the procedural action outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 30 percent evaluation for the veteran's duodenal ulcer, with a hiatal hernia and gastroesophageal reflux, is granted, subject to the laws and regulations governing the payment of monetary benefits. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs