Citation Nr: 0812435 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-25 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) with pyloric stenosis. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1982. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO) which granted an increased 10 percent evaluation for GERD with pyloric stenosis, effective May 23, 2003. The veteran testified at a February 2008 Board hearing; the hearing transcript has been associated with the claims file. During the veteran's Board hearing, he reported having teeth taken out due to constant regurgitation of stomach acid due to GERD. The veteran's statement reasonably raises a claim of entitlement to service connection for a dental disorder, secondary to service-connected GERD. This issue is not currently on appeal and is referred to the RO for further action. FINDINGS OF FACT 1. Prior to October 23, 2007, GERD with pyloric stenosis is shown to result in regurgitation after eating, once or twice a week, with a burning sensation in the stomach and chest; GERD was well controlled with medication. 2. From October 23, 2007 GERD with pyloric stenosis is shown to result in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, reported episodes of substernal pain, erosive esophagitis, and antral erosion in the stomach. The veteran's GERD does not result in material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSIONS OF LAW 1. Prior to October 23, 2007, the criteria for an evaluation in excess of 10 percent for GERD with pyloric stenosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). 2. From October 23, 2007, the criteria for a 30 percent evaluation for GERD with pyloric stenosis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The Board finds that VA has met all statutory and regulatory VCAA notice and duty to assist requirements. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an October 2003 letter, VA informed the veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the veteran was responsible. VA also asked the veteran to provide any evidence that pertains to his claim. A November 2006 VCAA letter provided the veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was not received prior to the initial rating decision. Despite the inadequate timing of this notice, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO cured any VCAA notice deficiency by issuing the fully compliant notice in November 2006. The RO readjudicated the case in a March 2007 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this 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 an SOC or SSOC, is sufficient to cure a timing defect). There is no indication that any notice deficiency reasonably affects the outcome of this case. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate his or her a claim: (1) the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life, the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. The veteran was not provided pertinent information in complete accordance with Vazquez-Flores v. Peake in the VCAA notices cited above. However, cumulatively, the veteran was informed of the necessity of providing medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. The veteran was not provided VCAA notice of the criteria necessary for entitlement to a higher disability rating such as in the form of a specific measurement or test result. VCAA notices informed the veteran that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic code(s); and provided examples of pertinent medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. Despite any notice deficiency, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the veteran clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the veteran's contentions as well as the communications provided to the veteran by the VA, it is reasonable to expect that the veteran understands what was needed to prevail. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The RO provided the veteran with applicable Diagnostic Codes under which he has been rated in a July 2005 statement of the case. The veteran has been afforded ample opportunity to submit additional evidence in support of his claim and has identified relevant treatment records at the VA medical center which have been obtained. The veteran's VA treatment records, VA examinations, and a Board hearing transcript have been associated with the claims file. VA has provided the veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). 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 (2007). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The CAVC has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218 (U.S. Vet. App. Nov. 19, 2007). The Board has considered whether a staged rating is for consideration. In this case, the evidence of record shows that the veteran's service-connected disability has increased over the course of this appeal so as to warrant different ratings during distinct time periods. The veteran is currently rated under Diagnostic Code 7399- 7346 for GERD with pyloric stenosis. 38 C.F.R. § 4.114 (2007). A specific diagnostic code does not exist which sets forth criteria for assigning disability evaluations for the exact disability suffered by the veteran. When an unlisted condition is encountered, it is permissible to rate that condition under a closely related disability as to which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. See 38 C.F.R. § 4.20 (2007). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition. See 38 C.F.R. § 4.27. The Schedule of Ratings of the Digestive System at 38 C.F.R. § 4.114 provides 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 (2007). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Diagnostic Code 7346, under which the veteran is currently rated, assigns a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). A 30 percent rating for a hiatal hernia is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year- period preceding onset of the disease. 38 C.F.R. § 4.112 (2007). Under Diagnostic Code 7203, a 30 percent evaluation is assigned for moderate stricture of the esophagus. 38 C.F.R. § 4.114, Diagnostic Code 7203 (2007). A 50 percent evaluation is assigned for severe stricture of the esophagus permitting liquids only. Id. A maximum 80 percent evaluation is assigned for stricture of the esophagus permitting passage of liquids only, with marked impairment of general health. Id. A November 2003 VA examination shows that the veteran had a history of gastritis with gastric bleeding. The veteran denied vomiting, but reported having some regurgitation after eating. This occurred one or two times a week. He denied any hematemesis. The veteran reported getting a cramping sensation in his stomach and a burning sensation in his chest. He had a normal upper gastrointestinal examination in April 2000. The veteran was treated with medication, which he stated helped some. He reported that not eating helped. He denied diarrhea or constipation. He denied distention. There was no evidence of peptic ulcer disease. The veteran reported that his weight fluctuated depending on how he was eating. The veteran's maximum weight in the past year was 202 pounds and his minimum weight was 176 pounds. The veteran was diagnosed with a history of GERD and gastric bleeding with non-steroidal anti-inflammatory use, resolved with residuals. VA treatment records dated from 2003 to 2008 have been associated with the claims file. VA treatment records dated from May 2003 to September 2007 do not reflect complaints relating to the veteran's service-connected GERD with pyloric stenosis. VA treatment records from May 2003 to September 2007 show that the veteran carried a diagnosis of GERD in good control with medication. A March 2005 VA treatment note shows that the veteran did not have anemia at that time. A January 2007 note shows that the veteran had mild gastric tenderness to palpation to the abdomen. A July 2007 note shows that the veteran continued to carry a diagnosis of GERD with good relief with medication. An October 23, 2007 VA treatment report indicates that the veteran's only new problem that day was burning epigastric pain after eating, and two to three episodes of non-bloody, non-bilious vomiting a week over the last two months. The veteran stated that vomiting tended to occur early in the morning, sometimes after eating or taking pills. He denied dysphagia, odynophagia, diarrhea, melena, hematochezia, or hematemesis. The veteran reported mild, associated, non- radiating epigastric pain with episodes of vomiting. The veteran had an old diagnosis of acquired pyloric stenosis from 2000 but he did not have an esophagogastroduodenoscopy (EGD) or other studies to support this diagnosis. The veteran was assessed with persistent nausea and vomiting, and epigastric pain. The examining physician indicated that the veteran would be scheduled for an EGD to evaluate the veteran for pyloric stenosis or other gastric outlet obstruction, esophagitis, or other abnormalities. An EGD was completed in November 2007. There was no cancer. The veteran was assessed with mild congestion and mild foveolar epithelial hyperplasia. The veteran had a subsequent November 2007 diagnosis of reflux esophagitis and a December 2007 diagnosis of erosive esophagitis. A February 2008 treatment note reflects a current diagnosis of erosive esophagitis, medium hiatal hernia, and antral erosion in the stomach. During the veteran's February 2008 Board hearing he reported increasing symptoms such as frequent vomiting, diarrhea, sleep disturbance due to his GERD symptomatology, tooth loss, and episodes of chest pain. The Board finds that an analogous rating under Diagnostic Code 7346 is appropriate in this case. The medical evidence of record shows that the veteran's GERD with pyloric stenosis increased in severity. However, the earliest indication of such an increase was in October 23, 2007. Prior to October 23, 2007, the veteran is not shown by medical evidence to have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health to warrant a higher evaluation under Diagnostic Code 7326. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). The evidence of record shows that the veteran's GERD was well controlled with medication. The veteran is shown to have symptoms of pyrosis, and regurgitation. A November 2003 VA examination noted that the veteran had regurgitation which occurred once or twice a week, and he reported getting a burning sensation in his chest. The Board finds, however, that prior to October 23, 2007, the veteran's symptomatology more closely resembles that described for a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation, to include dysphagia, pyrosis, and regurgitation, and substernal or arm or shoulder pain, with less severity. Id. From October 23, 2007, the veteran's GERD is shown to have increased in severity. VA treatment records reflect diagnoses of persistent nausea and vomiting and epigastric pain; mild foveolar epithelial hyperplasia; erosive esophagitis; medium hiatal hernia; and antral erosion in the stomach. The Board finds that from October 23, 2007, the evidence shows that the veteran has symptoms analogous to a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, with reports of substernal pain, productive of considerable impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). From October 23, 2007, a 30 percent evaluation for GERD with pyloric stenosis is warranted. The Board finds that a higher 60 percent evaluation is not warranted under Diagnostic Code where the veteran's GERD with pyloric stenosis is not shown to result in material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2007). Although the veteran testified in January 2008 that he had lost 37 pounds since the previous Thanksgiving, the objective evidence does not support this assertion and does not show material weight loss. VA treatment records dated from November 2003 to October 2007 show the veteran's weight to range from 173 to 190 similar to the weight recorded in VA records dated from June 1997 to May 1998 which ranged from 176 to 193. Although VA treatment records dated through December 2007 are of record, none of them record the veteran's weight. Significantly however, none of these records dated from November 2007 to December 2007 show a report or complaint of an almost 40 pound loss of weight. Further, any recent weight loss is not shown to have been sustained for three months or longer, and in addition to material weight loss, the remaining criteria for a 60 percent evaluation would also have to be met which is not the case here. In making this determination, the Board has considered whether the veteran's disability would warrant a higher evaluation under other Diagnostic Codes pertaining to the digestive system. However, the veteran does is not shown to have moderate stricture of the esophagus prior to October 23, 2007, or severe stricture of the esophagus permitting liquids only from October 23, 2007 to warrant a higher rating under Diagnostic Codes 7203. See 38 C.F.R. § 4.114, Diagnostic Code 7203 (2007). The veteran is not shown to exhibit symptomatology analogous to other provisions of the Schedule of Ratings for the Digestive System. See 38 C.F.R. § 4.114 (2007). The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, has not necessitated frequent periods of hospitalization, and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). C. Conclusion Prior to October 23, 2007, the preponderance of the evidence is against finding that the veteran's GERD with pyloric stenosis increased to warrant a higher rating evaluation. From October 23, 2007, the Board concludes that the evidence supports a 30 percent rating for GERD with pyloric stenosis. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt. ORDER Prior to October 23, 2007, an increased rating for GERD with pyloric stenosis, in excess of 10 percent, is denied. From October 23, 2007, a 30 percent rating, but no more, is granted for GERD with pyloric stenosis subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs