Citation Nr: 0812538 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-12 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of a duodenal ulcer. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from June 1976 to May 1977. This matter comes to the Board of Veterans' Appeals (Board) from June 2004 and November 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. and Columbia, South Carolina, respectively. This case was remanded for further development in February 2004. FINDING OF FACT The residuals of a duodenal ulcer are characterized by continuous moderate manifestations of mild diffuse abdominal pain. CONCLUSION OF LAW The criteria for a 20 percent initial disability rating for residuals of a duodenal ulcer have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Codes 7305-7307 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103(a) (West 2002), VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b) (2007), VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. The VCAA notice should be provided to a claimant before the Agency of Original Jurisdiction (AOJ) renders the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If such notice is sent after the initial decision, then it should be sent before a readjudication of the claim. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In the present case, the veteran was issued a February 2004 letter that essentially met the requirements set forth in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, another VCAA letter was issued in March 2007. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in a March 2007 letter. It is well to observe that service connection for the residuals of a duodenal ulcer has been established and an initial rating for that condition has been assigned. Thus, the veteran has been awarded the benefit sought, and his claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. As such, section 5103(a) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Also, it is of controlling significance that after awarding the veteran service connection for the residuals of a duodenal ulcer and assigning an initial disability rating for that condition, he filed a notice of disagreement contesting the initial rating determination. The RO furnished the veteran a Statement of the Case that addressed the initial rating assigned for his residuals of a duodenal ulcer, included notice of the criteria for a higher rating for that condition, and provided the veteran with further opportunity to identify and submit additional information and/or argument, which the veteran has done by perfecting his appeal and submitting additional medical evidence in support of his appeal. See 38 U.S.C.A. §§ 5104(a), 7105, 5103A (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the veteran throughout the remainder of the administrative appeals process, and similarly accorded the veteran and his representative a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim under 38 U.S.C.A. § 5103A, the VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded a comprehensive VA examination in conjunction with this appeal, addressing the disorder at issue. In summary, all relevant facts have been properly developed with regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and 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 VA with no benefit flowing to the veteran are to be avoided). II. Increased Initial Rating for Residuals of a Duodenal Ulcer Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Specific diagnostic codes will be discussed where appropriate below. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2006). All reasonable doubt is resolved in the veteran's favor. 38 C.F.R. § 4.3. In June 2004, the RO granted service connection for a duodenal ulcer. A zero percent evaluation was assigned, effective from October 16, 2000. In September 2007, however, the RO increased the evaluation to 10 percent as of October 16, 2000. Under Diagnostic Code 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 moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 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. A rating of 60 percent is assigned to severe ulcers 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. In a January 1995 Baptist Medical Center treatment report, it was noted there was no definite reflux and the stomach appeared normal. There was no considerable deformity to the duodenal bulb. The physician noted that due to the deformity and pooling of barium, he could not exclude a small active duodenal ulcer. The physician's impression was gross deformity to the duodenal and peptic ulcer disease. He also noted a small hiatal hernia with no reflux. The veteran was prescribed Prevacid. An esophagogasduodenoscopy report dated September 1996, Dr. Thieu found that the duodenal was normal and that there was no evidence of duodenitis, duodenal ulcers, nodules, diverticula, intrinsic, or extrinsic masses, polyps, arteriovenous malformations, in the duodenum, duodenal bulb or pylorus. In an August 2000 VA treatment report, it was noted that the veteran was prescribed Maalox for his peptic ulcer disease. The veteran was to avoid caffeine, spicy foods, and alcohol. In a January 2001 VA treatment report the veteran also related stomach burning and reflux. He denied nausea, vomiting or melena. He was on a restricted diet due to gastroesophageal reflux disease (GERD). VA treatment records from January 3, 2001, June 25, 2001, December 1, 2001, and June 11, 2002, noted that veteran did not experience nausea or vomiting. The veteran was prescribed Lansoprazole, which was subsequently changed to Rabeprazole in December 2001. In February 2004, the medication was changed again to Omeprazole. In an August 2001 VA examination, the veteran reported to the examiner that he had stomach problems in service. He had a GI series done, which showed a small ulcer. It was noted that the veteran did not have any hematemesis or melena. He had infrequent pain and no weight loss. The examiner diagnosed duodenal ulcer. In a February 2004 VA treatment report, the veteran was noted to have Gastroesophageal Reflux Disorder. During a March 2002 VA examination, the veteran reported to the examiner that he experienced vomiting and constipation before taking Prilosec. He further told the examiner that he noticed a significant improvement in his epigastric pain and reflux symptoms while on Prilosec. The examination revealed that his abdomen was soft, nontender and nondistended. The examiner noted normal bowel sounds. The veteran denied hematemesis or melena. The September 2005 VA examination found no evidence f a current active peptic ulcer disease and attributed the veteran's symptomatology to reflux. The examiner noted that the veteran, however, did not have a recent esophagogastroduodenoscopy. In a February 2007 VA treatment record, the veteran reported having epigastric abdominal pain. During his June 2007 VA stomach examination, the veteran reported that he experienced intermittent periods of nausea, vomiting, occasional diarrhea, and melena. He stated that he lost about forty pounds during the past year unintentionally. He mentioned that he recently had an episode of severe epigastric pain which warranted a visit to the hospital. He was prescribed sucralfate. The examiner noted that he was well-nourished, well-developed and did not appear to be in obvious discomfort. The examiner diagnosed duodenal ulcer based on the veteran's report. An August 2007 VA examination revealed complaints of nausea and vomiting 4 to 5 times per week since December 2006. He stated that prior to December 2006, his symptoms were severe and occurred greater than 10 days in a row. He told the examiner that his current symptoms are not severe and he does not have incapacitating episodes or history of anemia. The veteran denied recent melena and hematemesis. He further told the examiner that he had mild diffuse abdominal pain daily. On examination, the veteran's abdomen was soft, with mild diffuse tenderness to deep palpation. The Board finds that, after resolving all reasonable doubt in the veteran's favor, his disability picture more nearly approximates the criteria for a 20 percent evaluation. The probative medical evidence, including treatment reports and the August 2007 VA examination, along with the lay testimony, demonstrate that the veteran's gastric disorder is manifested by continuous moderate manifestations of mild diffuse abdominal pain. A higher rating is not warranted as there is no impairment of health manifested by anemia or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence (i.e. where the evidence supports the claim or is in relative equipoise, the appellant prevails). 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board finds that the record is in relative equipoise as to the symptoms that equal or more nearly approximate the criteria for a 20 percent evaluation. See Fenderson, 12 Vet. App. at 125-26. In summary, for the reasons and bases expressed above, the Board concludes that a 20 percent rating is warranted. The record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for a 20 percent evaluation at any time since the effective date of service connection. See Fenderson, 12 Vet. App. at 125-26. In other words, the veteran's gastric disorder has been no more than 20 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the veteran has not required frequent, or indeed any, hospitalization for the disability and that the manifestations of the disability are not in excess of those contemplated by the assigned rating. In sum, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Therefore, the Board has concluded that referral of this case of extra- schedular consideration is not in order. ORDER Entitlement to a 20 percent initial disability rating for residuals of a duodenal ulcer is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs