Citation Nr: 0811081 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-38 903 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for the service-connected irritable bowel syndrome (IBS) with a history of erosive gastritis, to include the assignment of a separate compensable evaluation for erosive gastritis. 2. Entitlement to an initial compensable evaluation for the service-connected left knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The veteran served on active duty from October 1986 to May 1990. In October 2005, the Board of Veterans' Appeals (Board) granted service connection for a spinal disorder and a left hip disorder and remanded the issues of service connection for IBS, an initial compensable evaluation for service- connected left knee disability, and an initial compensable evaluation for service-connected erosive gastritis to the RO for additional development. A September 2007 rating decision granted service connection for IBS and assigned an initial evaluation of 30 percent for IBS with history of erosive gastritis effective on August 25, 2003. Inasmuch as a rating higher than 30 percent is available for the now service-connected gastrointestinal disability, a claimant is presumed to be seeking the maximum available benefit for a given disability, and the veteran had not indicated that she is satisfied with the current rating, this issue remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Since August 25, 2003, the service-connected gastrointestinal disability picture is not shown to have been manifested by more than moderate disablement as reflected by frequent episodes of bowel disturbance with abdominal distress; neither small nodular lesions nor eroded or ulcerated areas with symptoms are shown during this period; nor are findings of anemia, neither malnutrition or weight loss nor other related findings that are productive of impairment of health currently demonstrated. 2. Since August 25, 2003, the service-connected left knee disability is shown to be manifested by complaints of constant aching with motion from 0 to 140 degrees and pain at the extreme of flexion; neither instability nor bony abnormality is demonstrated. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 30 percent for the service-connected IBS with a history of erosive gastritis or a separate compensable evaluation for erosive gastritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Codes 7307-7319 (2007). 2. The criteria for the assignment of an initial compensable rating for service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a including Diagnostic Codes 5299-5260 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Considerations The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2006). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issues decided herein. The RO sent the veteran a letter in February 2006 in which she was informed of the requirements needed to establish an increased rating. In accordance with the requirements of VCAA, the letter informed the veteran what evidence and information she was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims files. The veteran was advised in the letters to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in her possession that pertains to a claim. Additionally, the veteran was informed in a letter dated in October 2007 about effective dates if an increased rating claim was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007). The veteran was also told in the October 2007 letter that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A relevant VA examination was conducted in August 2006. The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on these issues. The veteran has been given ample opportunity to present evidence and argument in support of her claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2007). Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that defect would not be more than harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with VCAA reasonably affects the outcome of this case, the Board finds that any such omission is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Increased Rating Claims Law And Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2006). Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7 (2006). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2006). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. IBS With Erosive Gastritis Schedular Criteria The increased rating issue on appeal is one affecting the digestive system. General rating considerations for diseases of the digestive system are contained in 38 C.F.R. §§ 4.110- 4.113. 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 by the instructions 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 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. 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. Although the veteran has more than one gastrointestinal diagnosis, they are rated as a single disabling entity. Diagnostic Code 7307 provides a higher rating for hypertropic gastritis. Diagnostic Code 7307 provides a 60 percent rating for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. A 30 percent rating is assignable for chronic hypertropic gastritis with multiple eroded or ulcerated small areas with symptoms. A 10 percent rating is assignable for chronic gastritis with small nodular lesions and symptoms. Under DC 7319, irritable colon syndrome, a 30 percent evaluation is assignable for severe; diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. A 10 percent rating is assignable for moderate; with frequent episode of bowel disturbance and abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Analysis In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2007). In this case, there are two gastrointestinal conditions that have been identified. The hyphenated diagnostic codes indicate that the veteran could be assigned a rating under either code. The veteran, who was initially assigned a noncompensable evaluation for erosive gastritis, effective on August 25, 2003, was granted service connection for IBS by rating decision in September 2007. This rating decision combined the veteran's service-connected IBS with her already service- connected erosive gastritis and assigned a 30 percent rating, effective on August 25, 2003. As noted, any ratings under diagnostic codes 7301 to 7329 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. In this case, the current 30 percent evaluation is assigned for IBS under Diagnostic Code 7319. While a rating of 60 percent may be assigned for gastritis when there is chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas, the veteran is not have any current significant gastritis symptomatology that would equate with more than small nodular lesions with symptoms. A disability picture manifested by findings of multiple small eroded or ulcerative areas has not been shown. Because the predominant disability picture is rated on basis of manifestations of IBS, there can be no separate rating assigned for erosive gastritis in this case. There is no current medical evidence of chronic gastritis, including on VA examination in August 2006 when the prior erosive gastritis was noted to have most likely healed.. The Board would also note that, although gastroesophageal reflux was diagnosed on VA examination in August 2006, an upper gastrointestinal x-ray series in August 2006 was unremarkable for a hiatal hernia or gastroesophageal reflux. Additionally, a higher rating cannot be assigned under another diagnostic code for the service-connected gastrointestinal disability absent findings of anemia, malnutrition or weight loss productive of impairment of health. Left Knee Disability Schedular Criteria Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Analysis The service-connected left knee disability is rated as noncompensable under Diagnostic Codes 5299-5260 for limitation of flexion. A designation of Diagnostic Code 5299 reflects that the disability is a condition not specifically listed in the Rating Schedule, and hyphenation with 5260 indicates that the disability has been rated as analogous to limitation of motion of the leg. See 38 C.F.R. §§ 4.20, 4.27 (2007). The veteran's range of motion of the left knee was from 0 to 140 degrees on examination for VA in August 2002. Motor function was 5/5, and there was no locking, subluxation or effusion of the left knee. There was no incoordination or weakness on range of motion testing. The X-ray studies of the knees were normal. The diagnosis was that of mild bilateral knee pain, secondary to reflex sympathetic dystrophy with mild effects on activities of daily living and ability to perform job. A May 2005 MRI of the left knee was reported to be within normal limits. On VA examination in August 2006, the veteran noted a constant ache in the left knee, worse with walking. His range of motion for the left knee was from 0 to 140 degrees with pain at the extreme of flexion. There was no redness, swelling or deformity. There also was no joint instability, objective evidence of pain or additional limitation due to pain, fatigue, weakness or lack of endurance following repetitive use. The X-ray studies of the left knee were considered unremarkable. The diagnosis was that of normal examination of the left knee. Based on this record, the medical evidence shows essentially normal range of motion in flexion and extension with only pain at the extreme of flexion since August 25, 2003. Consequently, the disability picture for the veteran's service-connected left knee disorder does not warrant a rating. Because there is no medical evidence of ankylosis, recurrent subluxation or lateral instability, or dislocation of semilunar cartilage, a compensable evaluation is not warranted for left knee disability under another diagnostic code for disability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258 (2007). The Board notes that an increased evaluation can also be assigned for a disability rated for limitation of motion due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the veteran has essentially normal range of motion of the left knee without evidence of fatigue, weakness, lack of endurance, or incoordination. Consequently, no additional compensation is warranted under DeLuca. See also 38 C.F.R. § 4.40, 4.45. The Board notes that because initial disability ratings are at issue, the veteran can be assigned a staged disability rating. Fenderson v. West, 12 Vet. App. 119 (1999). However, as there is no significant variation in symptomatology for either the veteran's IBS with erosive gastritis or for left knee disability during the appeal period, the Board concludes that no additional rating is warranted for either disability. See Fenderson v. West, 12 Vet. App. 119 (1999). Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular rating is warranted upon 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 that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the schedular evaluations in this case are not shown to be inadequate. The ratings in excess of those assigned provide for certain manifestations of the service- connected disabilities at issue, but the medical evidence reflects that those manifestations are not present in this case. Moreover, there is no evidence demonstrating that either of the service-connected disabilities markedly interferences with employment. In fact, it was noted on VA examination in August 2006 that examination of the left knee was normal and that prior erosive gastritis had most likely healed; moreover, an upper gastrointestinal x-ray series was considered unremarkable. Further, there is no evidence that the veteran has been recently hospitalized due to either of the service-connected disabilities at issue. Accordingly, the RO's decision not to submit this case for extraschedular consideration was correct. ORDER An initial evaluation in excess of 30 percent for service- connected IBS with erosive gastritis is denied. An initial compensable evaluation for the service-connected left knee disability is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs