Citation Nr: 0813981 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 03-23 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 40 percent for gastroenteritis with gastroesophageal reflux disease (GERD) and duodenal ulcer status post vagotomy and pyloroplasty (hereinafter a gastrointestinal disability) as of January 11, 2002, and a rating in excess of 20 percent as of July 1, 2005, to include the propriety of the reduction in rating. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from May 1974 to October 1988. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Waco, Texas, (hereinafter RO). In September 2006, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The case was remanded for additional development in March 2007, and the case is now ready for appellate review. FINDINGS OF FACT 1. From November 11, 2002, and prior to July 1, 2005, the service connected gastrointestinal disability did not result in severe disability manifested by pain, periodic vomiting, or recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite or severe impairment of health. 2. Based on receipt of a negative September 2004 upper gastrointestinal series and VA outpatient reports dated in 2004 reflecting no gastrointestinal complaints, a January 2005 rating decision proposed to reduce the rating for the service connected gastrointestinal disability from 40 percent to 20 percent; the veteran was notified of this proposal in January 2005. 3. The reduction in the rating for the service-connected gastrointestinal disability was formally implemented, effective from July 1, 2005, by rating decision dated in April 2005. 4. The rating reduction was based upon medical evidence that showed an actual change in the veteran's service-connected gastrointestinal disability when compared to the medical evidence dated prior thereto. 5. For the period beginning July 1, 2005, the service- connected gastrointestinal disability has not resulted in moderately severe disability 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. 6. For the period beginning July 1, 2005, the service connected gastrointestinal disability did not result in persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for the service connected gastrointestinal disability for the period from January 11, 2002, and prior to July 1, 2005, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §, 4.114, Diagnostic Codes (DCs) 7305, 7346 (2007). 2. The criteria for restoration of a 40 percent rating for the service-connected gastrointestinal disability are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105, 4.114, DC 7305 (2007). 3. The criteria for a rating in excess of 20 percent for the service-connected gastrointestinal disability for the period beginning July 1, 2005, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105, 4.114, DCs 7305, 7346 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. First with regard to the duty to notify, the Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the rating assigned by a RO for an award of benefits. In this regard, once a decision has been made awarding service connection and an effective date and rating for the award assigned, such as the instant case with respect to the October 2003 grant of service connection which gave rise to this appeal, 5103(a) notice has served its purpose, as the claim has already been substantiated. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). Nevertheless, in this case November 2004 and March 2007 letters did provide the veteran with VCAA notice regarding disability ratings, and the March 2007 letter provided the veteran with notice as to effective date matters. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, specific notice as to the pertinent diagnostic criteria at issue was contained in the January 2006 statement of the case. This notice was followed by readjudication and the issuance of a supplemental statement of the case in January 2008. See 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). Finally, the notice requirements enumerated in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) apply to a claim for increase and not to an initial rating claim. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the service medical records and made reasonable efforts to obtain relevant post-service records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes VA treatment records, the veteran's own statements and evidence he presented, and a VA examination in January 2008 to determine the severity of the service-connected gastrointestinal residuals as requested by the Board in its March 2007 remand. Thus, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria/Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the claim for increased compensation for the service-connected gastrointestinal disorder at issue herein, as indicated above, is based on the assignment of an initial rating for this condition following the initial award of service connection for this condition. The United States Court of Appeals for Veterans Claims (Court) held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson v. West, 12 Vet. App. 119 (1999); Francisco, 7 Vet. App. at 58. 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. Disability due to duodenal ulcers under 38 C.F.R. § 4.114, DC 7305 is rated as follows: A 60 percent rating is warranted for severe disability, characterized by pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, and with manifestations of anemia and weight loss productive of definite impairment of health. A 40 percent rating is warranted for moderately severe disability 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 20 percent rating is warranted for moderate disability, manifested by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 10 percent rating is warranted for mild disability, with recurring symptoms once or twice yearly. A hiatal hernia 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 warrants a 60 percent disability rating. Persistently recurrent epigastric distress due to hiatal hernia with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warrants a 30 percent disability rating. A hiatal hernia manifested by two or more of the symptoms for the 30 percent evaluation of less severity warrants a 10 percent disability rating. 38 C.F.R. § 4.114, DC 7346. Service connection for gastroenteritis with GERD and duodenal ulcer status post vagotomy and pyloroplasty was granted by an October 2003 rating decision. A 40 percent rating was assigned under DCs 7346-7305 effective from January 11, 2002. Evidence then of record included reports from a July 1996 vagotomy and pyloroplasty. Also of record were reports from a May 2002 VA examination that showed the veteran reporting that he had indigestion since shortly after he entered service. He indicated at that time that Tagamet was controlling symptoms. Additional evidence of record were reports from a September 2003 VA examination reflecting the veteran stating that since the July 1996 surgery, he had been doing "a lot better," with less nausea and vomiting. He reported having 1 to 2 episodes a month of nausea and vomiting, depending on the types of food he eats. The veteran stated that he has severe indigestion every day but that it had been improved recently with medication. He noted that his abdominal pains were also much better, and that he had episodes of such pain every three to four months. The veteran denied melena, diarrhea, or blood in his stools. He reported occasional constipation, and said he always gets diarrhea with drinking milk. Upon examination, there was no organomegaly or tenderness present in the abdomen and the bowel sounds appeared active. Evidence thereafter included a normal September 2004 upper gastrointestinal series and reports from outpatient treatment in February 2004 and August 2004 showing the veteran denying nausea, vomiting, or diarrhea. Also of record were reports from a November 2004 VA examination, at which time the veteran reported that he was suffering from intermittent stabbing pains in the epigastrium for which he was taking medication. The pain was described as transient in duration with occasional nausea but no vomiting, and the veteran indicated that medication usually controls symptoms. He described no diarrhea and normal bowel movements. No recent weight change was reported. The physical examination showed slight epigastric tenderness on deep palpation and the abdominal sounds were normal. Citing to the negative September 2004 upper gastrointestinal series and February and August 2004 VA outpatient treatment reports, as well as the November 2004 examination, a January 2005 rating decision proposed to reduce the rating for the service connected gastrointestinal disability from 40 percent to 20 percent. The veteran was notified of this proposal in January 2005. The veteran disagreed with this proposal, and submitted a statement on his behalf from his wife that noted the veteran suffers from acid reflux that is at times so bad that he is not able to eat or has to vomit. The reduction in the rating for the veteran's gastrointestinal disorder to 20 percent, effective from July 1, 2005, was formally implemented by an April 2005 rating decision. Thereafter, a January 2008 upper gastrointestinal series showed gastroesophageal reflux. A January 2008 VA examination showed the veteran reporting intermittent dysphagia about twice a week and occasional pain in the right side of his abdomen. He described occasional regurgitation, but denied hematemesis, melena, nausea or vomiting. He described no circulatory disturbance after meals and no periods of incapacitation due to stomach or duodenal disease. The examination revealed no signs of anemia, a non tender and non-distended abdomen and hypoactive but normal bowel sounds. The veteran reported having chronic diarrhea, with four bowel movements a day that are always loose. Examining first the propriety of the reduction in the rating for the veteran's gastrointestinal disability from 40 to 20 percent, generally, when reduction in the evaluation of a service-connected disability or employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and be furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). These procedures were followed by way of the January 2005 rating decision proposing to reduce the veteran's rating and the notice informing the veteran of this proposal in that month. With respect to the criteria under 38 C.F.R. § 3.344, the Board finds that, because the 40 percent rating in question had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) are not for application in this case, and a single re-examination disclosing improvement in the disability is sufficient to warrant reduction in a rating. See 38 C.F.R. § 3.344; see also Brown v. Brown, 5 Vet. App. 413, 418 (1993). In cases in which 38 C.F.R. § 3.344(a) is inapplicable, the United States Court of Appeals for Veterans Claims (hereinafter Court) has indicated that each disability be viewed in relation to its history; that examination reports to be interpreted in light of the whole recorded history and requires consideration of each disability from the point of view of the veteran working or seeking work; a determination of the ability of the affected part of the body to function under the ordinary conditions of daily life, including employment must be made; and when any change in evaluation is to be made, that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2007); see also Faust v. West, 13 Vet. App. 342, 350 (2000); Brown, 5 Vet. App. at 420-21. The Court further stated that it was VA's responsibility "in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations" and that "not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421. Applying the criteria set forth above, the clinical evidence of record at the time of the October 2003 rating decision which assigned the 40 percent rating included reports from VA examinations in May 2002 and September 2003 that reflected gastrointestinal complaints, to include severe daily indigestion, nausea, and vomiting. In contrast, no gastrointestinal complaints were presented by the veteran on VA outpatient visits in February and August 2004. As such, and in light of the negative September 2004 upper gastrointestinal series, there was evidence of "actual improvement" in the veteran's disability that supports the rating reduction. Moreover, this evidence otherwise did not demonstrate that there was "moderately severe" disability 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 so at to warrant the 40 percent rating provided by DC 7305. The evidence also did not otherwise reflect entitlement to a 40 percent rating under any other potentially relevant diagnostic codes, to include under DC 7348 (Vagotomy with pyloroplasty or gastroenterostomy). In this regard, a 40 percent rating under DC 7348 requires demonstrably confirmative post operative complications of stricture or continuing gastric retention, and such long term residuals of the 1996 surgery are simply not demonstrated. As such, the Board finds that the reduction in the rating for the veteran's gastrointestinal disorder was a proper exercise of reasonable rating judgment. Turning now to the issue of whether the evidence demonstrated that the veteran was entitled to a rating in excess of 40 percent for the service connected gastrointestinal disability for the period from January 11, 2002, and prior to July 1, 2005, the clinical evidence during this period, to include the September 2003 and November 2004 VA examination reports, negative September 2004 upper gastrointestinal series and February 2004 and August 2004 VA outpatient treatment reports, do not reflect "severe" disability or definite impairment of health due to pain, periodic recurrent hematemesis or melena, or manifestations of anemia or weight loss. While it is true that some of these reports reflect periodic vomiting, there is no indication that this resulted in severe disability or definite impairment of health, and these reports specifically documented no weight loss, melena, hematemesis, or anemia, and the veteran reported good results from medication for pain. As such, a 60 percent rating was not warranted for the period in question under DCs 7305 or DC 7346. Review of the other potentially applicable diagnostic codes also does not reveal a provision under which a rating in excess of 40 percent was warranted for the period from January 11, 2002, and prior to July 1, 2005. The final matter for consideration is whether the clinical evidence demonstrates that the criteria for rating in excess of 20 percent is warranted for the period beginning July 1, 2005. As indicated, the next higher (40 percent) rating assignable under DC 7305 requires moderately severe disability 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. Such symptomatology is not demonstrated by the January 2008 VA examination report or any other relevant clinical record, to include the VA outpatient treatment records that have been obtained dated through September 2007. As for increased compensation under DC 7346, while the veteran complained about intermittent dysphagia occurring about twice a week at the January 2008 examination, neither the reports from this examination, nor any other relevant clinical record, indicates that there is considerable impairment of health due to dysphagia, pyrosis, or regurgitation that is accompanied by substernal or arm or shoulder pain. As such, a 30 percent rating is not warranted under DC 7346 for the period beginning July 1, 2005. Reviewing other potentially applicable diagnostic codes, a 30 percent rating is warranted under DC 7348 with symptoms and confirmed diagnosis of alkaline gastritis or "confirmed persisting diarrhea." Alkaline gastritis is not demonstrated, and while "chronic" diarrhea was included in the diagnoses following the January 2008 VA examination, the veteran has denied having diarrhea on multiple occasions as set forth above, and the recent VA outpatient treatment record obtained dated through September 2007 do not reflect persistent complaints of diarrhea. As such, the Board finds that the record does not demonstrate "confirmed or persisting diarrhea" so as to warrant a 30 percent rating under DC 7348. Review of the relevant clinical evidence does not otherwise reflect that entitlement to a rating in excess of 20 percent for the period beginning July 1, 2005, is warranted under any other potentially applicable diagnostic code. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88, 94 (1996). In this case, however, the schedular evaluations are not inadequate. Ratings in excess of that currently assigned are provided for certain manifestations of the veteran's service- connected residuals, but those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran has not required frequent hospitalizations due to his service connected gastrointestinal disability, and his service-connected residuals have not shown functional limitation beyond that contemplated by the ratings that have been assigned. Accordingly, referral of this decision for extraschedular consideration is not indicated. ORDER Entitlement to an initial rating in excess of 40 percent for the service connected gastrointestinal disability for the period from January 11, 2002, and prior to July 1, 2005, is denied. Entitlement to restoration of a 40 percent rating for the service connected gastrointestinal disability is denied. Entitlement to a rating in excess of 20 percent for the service connected gastrointestinal disability for the period beginning July 1, 2005, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs