Citation Nr: 0814446 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-02 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to a rating in excess of 40 percent for ulcer disease with gastrectomy and gastritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas J. Boorstein, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from June 1963 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Anchorage, Alaska, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 40 percent rating for ulcer disease with gastrectomy and gastritis. In May 2007, this case was remanded for additional evidentiary development. The case has been returned for appellate review. In a January 2005 statement, the veteran indicated that his ulcer disease with gastrectomy and gastritis had gotten so much worse that he had to retire from his job. The Board notes that once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total disability rating based on individual unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see also VAOPGCPREC 12-2001 (July 6, 2001). In its May 2007 remand, the Board referred this issue for additional development. The issue of whether the veteran is entitled to a total disability rating based on individual unemployability is again referred to the RO for appropriate action. Further, the Board notes that on the veteran's August 2007 VA examination, the examiner noted a hernia. It is unclear whether this hernia is connected to the veteran's service or is secondary to a service-connected disability. Accordingly, the Board will refer this issue to the RO for any action deemed appropriate. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's ulcer disease with gastrectomy and gastritis is best characterized as moderate with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent rating for ulcer disease with gastrectomy and gastritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.110, 4.111, 4.112, 4.113, 4.114 Diagnostic Codes 7307, 7308, 7348 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Recently, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims 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. The veteran has been assigned a 40 percent disability evaluation for his gastrointestinal disability under Diagnostic Code 7308. 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, the relevant disability ratings for which are listed in the following paragraph, 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 and 4.113. Thus, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Again, a single evaluation will be assigned under the Diagnostic Code that 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. Under Diagnostic Code 7307, chronic hypertrophic gastritis, with small nodular lesions and symptoms warrants a 10 percent evaluation; multiple small eroded or ulcerated areas and symptoms warrants a 30 percent evaluation; and severe hemorrhages, or large ulcerated or eroded areas warrants a 60 percent evaluation. 38 C.F.R. § 4.114, Diagnostic Code 7307. Under Diagnostic Code 7308, postgastrectomy syndrome, if mild, with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations warrants a 10 percent rating; if moderate, with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss warrants a 40 percent rating; and if severe, associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia warrants a 60 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7308. Under Diagnostic Code 7348, a vagotomy with pyloroplasty or gastroenterostomy, with a recurrent ulcer with an incomplete vagotomy warrants a 20 percent rating; with symptoms and a confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea warrants a 30 percent rating; or with demonstrably confirmative post-operative complications of stricture or continuing gastric retention warrants a 40 percent rating. A recurrent ulcer should be rated under Diagnostic Code 7305, minimum rating 20 percent, and dumping syndrome should be rated under Diagnostic Code 7308. 38 C.F.R. § 4.114, Diagnostic Code 7348, see Note. 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that he is entitled to a higher rating for his service-connected ulcer disease with gastrectomy and gastritis. The veteran's disability is currently rated as 40 percent disabling under Diagnostic Code 7308. The Board finds that this rating is appropriate. In October 1981, the veteran had an exploratory laparotomy, truncal vagotomy, antrectomy, and B-I gastroduodenostomy to resolve a recurrent duodenal ulcer. VA records reflect that in October 2003, the veteran reported a bitter, bile taste in his mouth all day, as well as burning in his epigastric region. The veteran reported taking lanzoprazole as prescribed but his symptoms had worsened. His diet was reportedly bland; he did not eat because his stomach became nauseated with increased burning; and he belched a lot with a foul odor. A history of gastroesophageal reflux disease was noted. On VA examination in July 2004, the veteran's stomach, post- surgery, was noted to be mild and occasionally moderately symptomatic. During VA treatment in August 2005, the veteran's bowels were normoactive. Gastroesophageal reflux status post vagotomy with mild dumping syndrome was noted. During this same treatment, the veteran reported visiting a private hospital for vomiting in April 2005. In August 2007, an additional VA examination was performed. The examiner noted that since the veteran's operation in service he has had postprandial abdominal cramping, sweating, and anxiousness. The veteran reported being told that these symptoms constituted dumping syndrome. The examiner noted that the veteran was retired by age or duration of his work. The examiner determined that the veteran's gastrointestinal disorder is mild in severity, he has loose stool for one day per week or less and symptoms of mild dumping syndrome which is more likely than not caused by the gastrectomy for stomach ulcers. This syndrome includes post-prandial fullness, pain, sweating, and nausea, lasting 30 minutes and occurring less than one time per week. Anemia and heartburn were reported by the veteran, but the examiner found that these are caused by esophagitis and are less likely than not due to his ulcer disease or gastric surgery. The examiner noted that the veteran reported episodes of abdominal colic, nausea or vomiting, and abdominal distension weekly for one or more hours. The examiner determined that these symptoms were moderate in severity and were manifested, in addition, by alternating constipation and diarrhea. The examiner noted that there were no symptoms of hematemesis or melena. There was a history of nausea and vomiting. There was a history of diarrhea, one to four times daily. The examiner noted that esophagogastroduodenoscopy studies in 2004 and July 2006 showed normal gastric mucosa. There were no erosions, ulcerations, or inflammation or bleeding sites. Gastric stasis was noted several times in prior upper gastrointestinal X-rays and endoscopies due to his vagotomy. This contributes to his gastroesophageal reflux disease. The examiner noted that there was no evidence of significant weight loss or malnutrition, nor were there signs of anemia or abdominal tenderness. The examiner concluded that the veteran had dumping syndrome after gastric surgery which was moderate, and his anemia had resolved. The examiner determined that the veteran has repeatedly received medical care for his complaints of his abdominal problems from shortly after surgery up until the present day. The complaints were all essentially explained as stemming from gastric stasis due to vagotomy or the post- prandial symptoms from the gastroduodenal anastmoses. The veteran has a history of bezoar with bowel obstruction, chronic gastric stasis with gastroesophageal reflux disease, abdominal pains, bloating, and post-prandial muscle cramping in the hands and the feet, sweatiness with anxiety which the veteran refers to as dumping syndrome. Since surgery, the veteran has had no recurrence of ulcers or any intestinal bleeding. The criteria for a 60 percent rating under Diagnostic Code 7308 are not met. The examiner has described the veteran's condition as mild or moderate. A 60 percent rating requires that the veteran's symptoms be severe, including nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with diarrhea and anemia. While the veteran reports nausea and diarrhea on occasion, he has not been shown to have circulatory disturbance after meals, hypoglycemic symptoms, nor weight loss with diarrhea. Although the veteran has reported anemia, the examiner determined that this is less likely than not related to service and in any event, that it had resolved. Therefore, a 60 percent rating is not appropriate. See 38 C.F.R. § 4.114; Diagnostic Code 7308. The Board has also considered whether the veteran's disability warrants a higher rating under any other applicable rating criteria and finds that it does not. Specifically, although the issue on appeal involves gastritis, there is no evidence to indicate that the veteran has gastritis. The examiner indicated that the veteran had normal gastric mucosa and has not had ulcers since the surgery in 1981. A rating of any level under Diagnostic Code 7307 is not appropriate. Additionally, as discussed above, the highest rating assignable under Diagnostic Code 7348, or vagotomy with pyloroplasty or gastroenterostomy is 40 percent. Thus, rating the veteran's disability under diagnostic code 7348 does not assist the veteran. As, both under 38 C.F.R. § 4.114 as well as § 4.14 it is impermissible to assign more than one rating to the veteran's disability, the Board finds that the 40 percent rating assigned based on Diagnostic Code 7308 is appropriate. The Board has considered whether the veteran was entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case. See Hart v. Mansfield, 21 Vet.App. 505 (2007). However, upon reviewing the pertinent evidence of record, the Board finds that, at no time during the pendency of this appeal has the veteran's service-connected disability been more disabling than as currently rated. The evidence does not reflect that the veteran's ulcer disease with gastrectomy and gastritis has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The VA examiner in August 2007 noted that the veteran retired from his job at the United States Postal Service due to age and length of employment. Frequent hospitalization has not been shown. An assignment for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. The preponderance of the evidence is against the veteran's claim, and the benefit of the doubt doctrine is not for application. See Gilbert, 1 Vet. App. at 49; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The appeal is denied. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board concludes that the veteran has been afforded proper notice under the VCAA. The RO provided a VCAA notice letter to the veteran in April 2004, prior to the initial adjudication of the veteran's claim in August 2004. The veteran's claim has been readjudicated multiple times. Prickett v. Nicholson, 20 Vet. App. 370 (2006). The VCAA letters notified the veteran of his and of VA's responsibilities regarding obtaining records. The April 2004 letter informed the veteran that he should submit any evidence that pertains to his claim. With regard to Dingess, a letter in this regard was sent to the veteran in August 2007. This letter informed the veteran of how VA determines a disability rating and an effective date. While this letter was sent after the initial adjudication of the veteran's claim, the veteran has not been prejudiced, as his claim has been readjudicated in an October 2007 Supplemental Statement of the Case. See Prickett. For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also 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 -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. Notice regarding this information was sent to the veteran in August 2007. It indicated that the veteran's claim for an increased rating would be adjudicated based upon a schedule of disabilities and also indicated that VA could assign a rating other than the levels found in the schedule if the veteran's impairment is not adequately covered by the schedule. It also provided examples of information that would assist VA in determining the applicable rating. The veteran has submitted private medical records to substantiate his claim and has thus shown actual knowledge that medical records would assist in determining his claim. Thus, the veteran has not been prejudiced. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has received the veteran's service medical records, VA treatment records, and private medical records. Although the veteran has indicated that he retired from the United States Postal Service (USPS) due to his disability, he has never indicated that the USPS has records pertaining to his retirement due to his service-connected disability. Further, as discussed above, the August 2007 VA examiner determined that the veteran retired not due to disability but due to age and length of service. Although these USPS records have not been obtained, the veteran has not been prejudiced as they will not assist in determining his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); 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 appellant are to be avoided). VA has therefore fulfilled its duty to assist in this regard. Assistance to the veteran shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran was provided with two examinations regarding his ulcer disease with gastrectomy and gastritis in July 2004 and August 2007. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) ORDER Entitlement to a rating in excess of 40 percent for ulcer disease with gastrectomy and gastritis is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs