Citation Nr: 1008352	
Decision Date: 03/05/10    Archive Date: 03/11/10

DOCKET NO.  03-35 059	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North 
Little Rock, Arkansas


THE ISSUES

1.  Entitlement to service connection for a right shoulder 
disorder.

2.  Entitlement to an increased initial rating for lipoma 
scars, rated as 10 percent disabling prior to October 23, 
2008, and rated as 20 percent disabling beginning on that 
date.

3.  Entitlement to an initial rating in excess of 10 percent 
for gastroesophageal reflux disease (GERD) with steatosis of 
the liver with early fibrosis.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E.B. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from October 1990 to 
February 2000.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2002 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Little Rock, Arkansas.

When the case was last before the Board in April 2007, the 
issues listed on the title page of this decision were 
remanded for additional development.  Additionally, the issue 
of entitlement to service connection for a low back disorder 
was remanded.  Thereafter, in a November 2009 rating 
decision, entitlement to service connection for a low back 
disorder was granted.  This is a complete grant of benefits 
sought on appeal.  Therefore, this issue is no longer on 
appeal.


FINDINGS OF FACT

1.  The Veteran's current right shoulder strain is 
etiologically related to active service.

2.  Throughout the entire period of the claim, the Veteran's 
lipoma scars have been manifested by pain or tenderness.

3.  Throughout the entire period of the claim, the Veteran's 
GERD with steatosis of the liver with early fibrosis has been 
manifested by epigastric distress with dysphagia and 
substernal arm or shoulder pain; he does not exhibit pyrosis 
or regurgitation, and his symptoms have never been productive 
of considerable impairment of health.  



CONCLUSIONS OF LAW

1.  A right shoulder disorder was incurred or aggravated 
during active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 
3.303 (2009).

2.  The criteria for a rating in excess of 10 percent for 
lipoma scars for the period prior to October 23, 2008, have 
not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.118, 
Diagnostic Codes 7800-7805 (2002, 2009).

3.  The criteria for a rating in excess of 20 percent for 
lipoma scars for the period beginning on October 23, 2008, 
have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.118, 
Diagnostic Codes 7800-7805 (2002, 2009).

4.  The criteria for a rating in excess of 10 percent for 
GERD with steatosis of the liver with early fibrosis have not 
been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.14, 4.114, 
Diagnostic Code 7346 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Review of the claims folder reveals compliance with the 
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 
5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a).  Proper VCAA notice 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.  
38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1).  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).

In Pelegrini, the United States Court of Appeals for Veterans 
Claims (Court) held that VCAA notice, as required by 
38 U.S.C. § 5103(a), must be provided to a claimant before 
the initial unfavorable adjudication by the RO. 

The Court has also held that the VCAA notice requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  Those five 
elements include:  1) veteran status; 2) existence of a 
disability; 3) a connection between the veteran's service and 
the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R. 
§ 3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  Additionally, 
this notice must inform a claimant that a disability rating 
and an effective date for the award of benefits will be 
assigned if service connection is awarded.  Id.  

With respect to the increased rating claims, the Veteran is 
challenging the initial evaluations following the grant of 
service connection for lipoma scars and GERD with steatosis 
of the liver with early fibrosis.  In Dingess, the Court held 
that in cases where service connection has been granted and 
an initial disability rating and effective date have been 
assigned, the typical service-connection claim has been more 
than substantiated, it has been proven, thereby rendering 
section 5103(a) notice no longer required because the purpose 
that the notice is intended to serve has been fulfilled.  Id. 
at 490-91.  Thus, VA had no additional duty to notify once 
service connection was granted.

Further, regarding increased rating claims, the Federal 
Circuit has held that VA's duty to notify, codified at 38 
U.S.C.A. § 5103(a), does not require it to provide notice of 
alternative diagnostic codes, or to solicit evidence of the 
impact of the Veteran's claimed disability on his daily life.  
Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sep. 4, 
2009). 

With respect to the service connection claim, in letters 
dated in February 2001, March 2005, October 2006, April 2007, 
July 2008, and August 2009 the RO and the Appeals Management 
Center (AMC) provided notice to the Veteran regarding what 
information and evidence is needed to substantiate his claim, 
as well as what information and evidence must be submitted by 
the Veteran and the types of evidence that will be obtained 
by VA.  Additionally, the October 2006 and April 2007 notice 
letters informed the Veteran as to disability ratings and 
effective dates.  

Because the notice pursuant to Dingess, supra, came after the 
initial adjudication of the service connection claim, the 
timing of the notice did not comply with the requirement that 
the notice must precede the adjudication.  The timing 
deficiency was remedied by the fact that the Veteran's 
service connection claim was readjudicated by the RO in 
November 2009, after proper VCAA notice was provided and 
after the Veteran had an opportunity to respond.  Mayfield v. 
Nicholson, 444 F.3d 1328 (2006).  The Board concludes that 
the duty to notify has been met.
  
The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
Veteran.  Specifically, the information and evidence that 
have been associated with the claims file includes the 
Veteran's service treatment records, VA treatment records and 
examination reports, private treatment records, and numerous 
lay statements.  Also of record and considered in connection 
with the appeal are various written statements submitted by 
the Veteran and his representative.  

As discussed above, the Veteran was notified and aware of the 
evidence needed to substantiate his claims, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  The Veteran was an active 
participant in the claims process, identifying pertinent 
medical evidence and submitting evidence.  Thus, he has been 
provided with a meaningful opportunity to participate in the 
claims process and has done so.  Any error in the sequence of 
events or content of the notice is not shown to have any 
effect on the case or to cause injury to the Veteran. 
 Therefore, any such error is harmless and does not prohibit 
consideration of this matter on the merits.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see 
also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998).  

Governing Laws and Regulations for Service Connection Claims

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  
Evidence of continuity of symptomatology from the time of 
service until the present is required where the chronicity of 
a condition manifested during service either has not been 
established or might reasonably be questioned.  38 C.F.R. § 
3.303(b).  Regulations also provide that service connection 
may be granted for any disease diagnosed after discharge, 
when all the evidence, including that pertinent to service, 
establishes that the disability was incurred in service.  38 
C.F.R. § 3.303(d).

To establish service connection for an injury, the Court 
generally requires a veteran to show (1) medical evidence of 
a current disability, (2) medical or lay evidence of in-
service incurrence or aggravation of an injury, and (3) 
medical evidence of a nexus between the claimed in-service 
injury and the present disability.  Dalton v. Nicholson, 21 
Vet. App. 23, 36 (2007).  In cases where the veteran cannot 
establish some of these elements, a veteran can instead 
establish continuity of symptomatology.  38 C.F.R. § 
3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  
To establish continuity of symptomatology, the Veterans Court 
requires a veteran to show "(1) that a condition was 'noted' 
during service, (2) evidence of postservice continuity of the 
same symptomatology, and (3) medical or lay evidence of a 
nexus between the present disability and the postservice 
symptomatology."  Barr, 21 Vet. App. at 307.  Lay evidence 
can be competent and sufficient to establish a diagnosis of a 
condition when (1) a layperson is competent to identify the 
medical condition, (2) the layperson is reporting a 
contemporaneous medical diagnosis, or (3) lay testimony 
describing symptoms at the time supports a later diagnosis by 
a medical professional. 

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits 
under laws administered by the Secretary.  The Secretary 
shall consider all information and lay and medical evidence 
of record in a case before the Secretary with respect to 
benefits under laws administered by the Secretary.  When 
there is an approximate balance of positive and negative 
evidence regarding any issue material to the determination of 
a matter, the Secretary shall give the benefit of the doubt 
to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also 
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a 
claim on its merits, the evidence must preponderate against 
the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 
citing Gilbert, 1 Vet. App. at 54.

Governing Laws and Regulations for Increased Rating Claims

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule) and are intended to represent the average 
impairment of earning capacity resulting from disability.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be 
reviewed in relation to their history.  38 C.F.R. § 4.1.  
Other applicable, general policy considerations are:  
interpreting reports of examination in light of the whole 
recorded history, reconciling the various reports into a 
consistent picture so that the current rating may accurately 
reflect the elements of disability, 38 C.F.R. § 4.2; 
resolving any reasonable doubt regarding the degree of 
disability in favor of the claimant, 38 C.F.R. § 4.3; where 
there is a question as to which of two evaluations apply, 
assigning a higher of the two where the disability picture 
more nearly approximates the criteria for the next higher 
rating, 38 C.F.R. § 4.7; and, evaluating functional 
impairment on the basis of lack of usefulness, and the 
effects of the disabilities upon the person's ordinary 
activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 
1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the 
assignment of an initial rating following an initial award of 
service connection for that disability, separate ratings can 
be assigned for separate periods of time based on the facts 
found - a practice known as "staged" ratings.  Fenderson v. 
West, 12 Vet. App. 119 (1999).


Analysis

The Board has reviewed all the evidence in the appellant's 
claims file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there is 
no requirement that the evidence submitted by the appellant 
or obtained on his behalf be discussed in detail.  Rather, 
the Board's analysis below will focus specifically on what 
evidence is needed to substantiate each claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

	I.  Right Shoulder Disorder

The Veteran contends that he is entitled to service 
connection for a right shoulder disorder because it was 
incurred during service.  An August 1995 service treatment 
record notes complaints of right shoulder pain of three 
months duration.  The pain was noted to occur when the 
Veteran sleeps on his right side.  The assessment was right 
shoulder impingement syndrome, right shoulder rotator cuff 
tear, and right shoulder tendonitis.  He was given 
prescription medication.  A November 1995 follow-up service 
treatment record notes that the Veteran's right shoulder was 
popping a lot, like it was half out of socket.  There was 
minimal effusion.  The assessment was right shoulder rotator 
cuff damage, right shoulder tendonitis, and slight right 
shoulder impingement.  Dental health questionnaires signed by 
the Veteran in March 1992, August 1997, September 1998, and 
December 1999 indicate that he had recurrent shoulder pain.  
An April 2001 report of medical history notes that the 
Veteran had a separated right shoulder 10 years earlier, but 
had no current problems.

The post-service medical evidence shows that in January 2001 
the Veteran was seen at the VA Medical Center for right 
shoulder problems.  He complained that his right shoulder 
feels tight at times and that it is sore.  A March 2003 VA 
primary care note reveals complaints of pain in both 
shoulders, left worse than right.  A July 2003 VA treatment 
record notes that the Veteran had pain in both shoulders.

A November 2004 letter from Dr. Wade indicates that the 
Veteran's shoulder problems are due to service.  It was noted 
that the Veteran had a possible rotator cuff tear during 
service.  Dr. Wade opined that pain, limitation, and 
degenerative joint disease are likely due to the Veteran's 
use of crutches and canes.  

A September 2005 letter from T. R. Bennett, D.M.D., notes 
that the Veteran's shoulder symptoms are related to the 
Veteran's service-connected TMJ injury.  

A September 2008 VA fee basis examination report notes that 
the Veteran reported a right shoulder condition which had its 
onset in 1995, due to lifting and doing strenuous activities 
in the military (doing EMT and CPR work).  He reported 
constant pain.  On examination of the right shoulder, there 
was tenderness.  There was no edema, effusion, weakness, 
redness, heat, subluxation, or guarding of movement.  The 
right shoulder had normal range of motion; however, the 
examiner opined that the joint function is additionally 
limited by pain, fatigue, weakness, lack of endurance, and 
incoordination on repetitive use.  Fatigue was noted to have 
the most functional impact.  The examiner stated, however, 
that there was no additional limitation of motion in terms of 
degrees.  The examiner opined that the right shoulder strain 
is at least as likely as not related to service.  The 
rationale provided is that the Veteran did a lot of strenuous 
work in the military which can cause the current condition.  

An additional VA fee basis medical opinion (without 
examination) was obtained in October 2009.  That opinion 
indicates that the right shoulder condition was noted in 
service in August 1995 and November 1995.  This problem 
continued after service in March 2003, December 2003, and 
October 2004.  As such, the examiner found that the history 
and findings in the record are consistent with the medical 
records reviewed.  The examiner opined that the right 
shoulder condition is at least as likely as not related to 
treatment in military service.

After review of the medical evidence of record, the Board 
finds that service connection is warranted for right shoulder 
strain.  Right shoulder problems were diagnosed during 
service.  Namely, right shoulder rotator cuff damage, right 
shoulder tendonitis, and slight right shoulder impingement, 
were diagnosed.  The Veteran was seen at the VA for 
complaints of right shoulder problems less than one year 
(January 2001) after he separated from service.  Moreover, 
there is a medical opinion in favor of the claim.  There is 
no medical opinion against the claim.  Therefore, service 
connection for right shoulder strain is granted.

	II.  Lipoma Scars

In the February 2002 rating decision on appeal, service 
connection was granted for lipoma scars pursuant to 38 C.F.R. 
§ 4.118, Diagnostic Code 7804.  A noncompensable rating was 
assigned, effective February 16, 2000.  In a November 2009 
rating decision, the RO increased the rating for the 
Veteran's lipoma scars to 10 percent, effective February 16, 
2000, and to 20 percent, effective October 23, 2008.

The Board notes that the rating criteria for evaluating 
disabilities of the skin were revised, effective August 30, 
2002.  In addition, the Board notes that, effective October 
23, 2008, regulations regarding the evaluation of skin 
disease were again revised.  See 73 Fed. Reg. 185, 54708-
54712 (2008).  The most favorable criteria must be applied, 
retroactive to, but no earlier than, the effective date of 
the change. VAOPGCPREC 3-2000.

The criteria in effect prior to August 30, 2002, provided 
that a 10 percent rating is assigned for superficial scars 
that are poorly nourished, with repeated ulceration, or that 
are tender and painful on objective demonstration.  38 C.F.R. 
§ 4.118, Diagnostic Codes 7803, 7804 (2002).  Scars may also 
be rated based on the limitation of function of the part 
affected.  38 C.F.R. § 4.118, Diagnostic Codes 7805 (2002).

Under the criteria which became effective August 30, 2002, a 
10 percent evaluation is authorized for superficial, unstable 
scars.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2009).  A 
note following this diagnostic code provides that an unstable 
scar is one where, for any reason, there is frequent loss of 
covering of the skin over the scar. 

Under the criteria which became effective August 30, 2002 
(but prior to October 23, 2008), a 10 percent evaluation is 
authorized for superficial scars that are painful on 
examination.  38 C.F.R. § 4.118, Diagnostic Code 7804.

Notes following Diagnostic Codes 7803 and 7804 provide that a 
superficial scar is one not associated with underlying soft 
tissue damage.  

In addition, the new criteria continue to provide that other 
scars may be rated on the basis of limitation of function of 
the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7804 
(2009).

The rating criteria which became effective August 30, 2002 
(but prior to October 23, 2008), provide that scars, other 
than of the head, face or neck, that are deep or that cause 
limited motion warrant a 10 percent if they involve an area 
or areas exceeding six square inches (39 sq. cm.), a 20 
percent evaluation if the area or areas exceed 12 square 
inches (465 sq. cm.) a 30 percent evaluation if the area or 
areas exceed 72 square inches (465 sq. cm.) or a 40 percent 
evaluation if the area or areas exceed 144 square inches (929 
sq. cm.).   38 C.F.R. § 4.118, Diagnostic Code 7801 (2009). 

A note following Diagnostic Code 7801 provides that a deep 
scar is one associated with underlying soft tissue damage.  

Under the criteria which became effective August 30, 2002 
(but prior to October 23, 2008), scars that are superficial, 
are not productive of limitation of motion, and are not on 
the head, face, or neck warrant a 10 percent evaluation if 
they involve an area or areas of 144 square inches (929 sq. 
cm.) or more.  38 C.F.R. § 4.118, Diagnostic Code 7802 
(2009).

A note following Diagnostic Code 7802 provides that a 
superficial scar is one not associated with underlying soft 
tissue damage.

Service treatment records reflect that in May 1996 the 
Veteran was seen for lipomas of the abdomen and thorax.  They 
were excised in December 1999.  At the separation examination 
there was a one cm surgical scar on the sternum, a one cm 
left upper quadrant surgical scar, and three one and one half 
cm scars on the left flank.  

A July 2003 VA treatment record notes that the Veteran has a 
history of lipomas.  A December 2003 VA treatment record 
notes that the Veteran has a scar on his ribs which hurts 
when he coughs.  

A September 2008 VA fee basis examination report notes that 
the Veteran described symptoms of pain and stiffness around 
the lipoma scars.  On examination there was a depressed scar 
on the lower part of the chest and three scars on the left 
side of the abdomen.  Each of these scars measured about 
three cm. by one cm.  The scars have tenderness and 
hypopigmentation of less than six square inches.  There is no 
disfigurement, ulceration, adherence, instability, tissue 
loss, inflammation, edema, keloid formation, 
hyperpigmentation, or abnormal texture.  

Under the former criteria for rating scars, which are 
applicable from the effective date of the grant of service 
connection to August 29, 2002, in order to receive a rating 
in excess of 10 percent, limitation of function of the 
affected part must be demonstrated.  In reviewing the medical 
evidence from this time period, there is no evidence 
whatsoever of limitation of function due to the lipoma scars.  
The Veteran did not report any complaints of limitation of 
function, nor does the medical evidence for this time period 
reflect such limitation of function.  As such, a rating in 
excess of 10 percent is not warranted under the former 
criteria.

Under the current criteria, for the period from August 30, 
2002 through October 22, 2008, in order to receive a rating 
in excess of 10 percent for lipoma scars, the scars must be 
deep or cause limitation of motion, with the area or areas of 
the scar(s) exceeding 12 square inches (465 sq. cm), or there 
must be limitation of function of the affected part 
warranting a higher rating.  First, the medical evidence does 
not show that the scars exceed 12 square inches (465 sq. cm).  
Additionally, none of the medical evidence from this time 
period shows that the scars are deep or that they cause 
limitation of function.  Instead, the only complaints have 
been that they are painful and cause stiffness.  Therefore, a 
higher rating under the criteria made effective on August 30, 
2002, is not warranted.

As noted above, beginning on October 23, 2008, the Veteran 
has been assigned a 20 percent rating based upon the below 
mentioned new criteria.  

Beginning October 23, 2008, burn scar(s) or scar(s) due to 
other causes, not of the head, face, or neck, that are deep 
and nonlinear are rated under Diagnostic Code 7801.  For 
these scars: Area or areas of 144 square inches (929 sq. cm.) 
or greater warrant a 40 percent rating; Area or areas of at 
least 72 square inches (465 sq. cm.) but less than 144 square 
inches (929 sq. cm.) warrant a 30 percent rating; Area or 
areas of at least 12 square inches (77 sq. cm.) but less than 
72 square inches (465 sq. cm.) warrant a 20 percent rating; 
Area or areas of at least 6 square inches (39 sq. cm.) but 
less than 12 square inches (77 sq. cm.) warrant a 10 percent 
rating.  

A deep scar is one associated with underlying soft tissue 
damage.  If multiple qualifying scars are present, or if a 
single qualifying scar affects more than one extremity, or a 
single qualifying scar affects one or more extremities and 
either the anterior portion or posterior portion of the 
trunk, or both, or a single qualifying scar affects both the 
anterior portion and the posterior portion of the trunk, a 
separate evaluation is assigned for each affected extremity 
based on the total area of the qualifying scars that affect 
that extremity, a separate evaluation is assigned based on 
the total area of the qualifying scars that affect the 
anterior portion of the trunk, and a separate evaluation is 
assigned based on the total area of the qualifying scars that 
affect the posterior portion of the trunk.  The midaxillary 
line on each side separates the anterior and posterior 
portions of the trunk.  Separate evaluations are combined 
under § 4.25. 38 C.F.R. § 4.118, Diagnostic Code 7801.

Also beginning October 23, 2008, burn scar(s) or scar(s) due 
to other causes, not of the head, face, or neck, that are 
superficial and nonlinear covering areas of 144 square inches 
(929 sq. cm.) or greater are rated as 10 percent disabling 
under Diagnostic Code 7802.  

A superficial scar is one not associated with underlying soft 
tissue damage.  Scar(s) that are unstable or painful on 
examination receive a compensable rating under 7804.  An 
unstable scar is one where, for any reason, there is frequent 
loss of covering of skin over the scar.  Other scars 
(including linear scars) and other effects of scars evaluated 
under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated 
under Diagnostic Code 7805, under which any disabling 
effect(s) not considered in a rating provided under 
Diagnositc Codes 7800-7804 are evaluated under an appropriate 
diagnostic code.  38 C.F.R. § 4.118, Diagnostic Codes 7801-
7805.

In order for the Veteran to receive a rating in excess of 20 
percent for the period beginning on October 23, 2008, it must 
be shown that the Veteran's lipoma scars are deep, nonlinear, 
and cover an area or areas of at least 72 square inches (465 
sq. cm.) but less an 144 square inches (929 sq. cm.), or that 
they cause limitation of function of the affected part.  

According to the competent medical evidence, the Veteran's 
service-connected lipoma scars are not deep or unstable, nor 
do they cover an area of 144 inches or limit function in any 
way.  The scars therefore do not warrant a rating in excess 
of 20 percent under the Diagnostic Codes 7801-7805 in effect 
beginning October 23, 2008.  

There is no contrary competent evidence that any criteria are 
met for a higher rating for any time period for the Veteran's 
lipoma scars under any of the relevant diagnostic codes.  As 
such, this disability is properly rated as 10 percent 
disabling prior to October 23, 2008, and as 20 percent 
disabling beginning on that date.  


	III.  GERD with Steatosis of the Liver with Early 
Fibrosis

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 in the 
instruction 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 (2009).

Disabilities of the digestive system are rated in accordance 
with 38 C.F.R. § 4.114, Diagnostic Codes 7200-7348.  Section 
4.114 provides that ratings under 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.

The Veteran's GERD with steatosis of the liver with early 
fibrosis is rated as 10 percent disabling under 38 C.F.R. 
§ 4.114, Diagnostic Code 7346.  Under Diagnostic Code 7346, 
hiatal hernia, a 10 percent disability rating is warranted 
when there are two or more of the symptoms for the 30 percent 
evaluation of less severity.  A 30 percent disability rating 
is in order when there is persistently recurrent epigastric 
distress with dysphagia, pyrosis, and regurgitation, 
accompanied by substernal or arm or shoulder pain, productive 
of considerable impairment of health.  A maximum 60 percent 
disability rating is in order when there are symptoms of 
pain, vomiting, material weight loss and hematemesis or 
melena with moderate anemia; or other symptom combinations 
productive of severe impairment of health.  See 38 C.F.R. § 
4.114.

The medical evidence of record shows that in May 1999, the 
Veteran was diagnosed with GERD.  A January 2000 liver biopsy 
revealed steatosis, mild chronic inflammation, and early 
septal fibrosis.  

A November 2004 letter from Dr. Wade notes that liver 
fibrosis, with a non-alcoholic fatty liver was diagnosed 
during service by a biopsy.  Dr. Wade further discussed the 
interrelationship between the genitourinary system and other 
body systems, as well as the records which show the Veteran's 
epigastric symptoms, including dysphagia, nightly 
regurgitation accompanied by sore throat and slight loss of 
voice, substantial pain, and shoulder pain.  

An April 2005 upper endoscopy report notes Grade A 
esophagitis, hiatus hernia, and gastric polyps.  Increasing 
Prilosec was recommended.  

A May 2005 VA fee basis examination report notes that the 
Veteran was diagnosed with esophagitis, Reincke's edema, and 
laryngeal reflux in 1998.  He has gained over 30 pounds.  He 
complained of difficulty swallowing, pain above the stomach, 
arm pain, passing black-colored old blood in stool, nausea, 
and vomiting, heartburn, pain behind the breast bone, 
vomiting blood, reflux, and regurgitation of stomach 
contents.  Symptoms are constant.  Treatment includes use of 
Prilosec and other medication.  He described decreased 
cognition, motivation, and energy.  This keeps him from 
speaking and communicating, and it aggravates his gastric 
problems.  His liver symptoms are near constant, daily, and 
debilitating.  He is functional and some times is able to 
work.  He complained of flank pain in the right upper side 
and substernal arm.  The pain is constant.  It causes easy 
fatigue, gastrointestinal disturbance, aches, joint pain, 
nausea, and loss of appetite.  Examination of the abdomen was 
normal.  Complete blood count was normal.  Some liver 
function tests were elevated.  It was noted that the Veteran 
has no ascites, hepatic encephalopathy, varicies, hemorrhage, 
portal hypertension, petal gastropathy, or jaundice.  

A September 2008 VA fee basis examination report notes that 
the Veteran's GERD does not affect his general body health.  
Over the past 12 months, the Veteran has gained 40 pounds.  
He reported dysphagia, heartburn, epigastric pain, scapular 
pain, arm pain, passing of black-tarry stools, and nausea and 
vomiting.  He has no hematemesis, reflux, or regurgitation of 
stomach contents.  The symptoms described occur constantly.  
The treatment is antacids and Zantac.  The Veteran reported 
that he has never been hospitalized for this condition, nor 
has he had any surgery for this condition.  He reported that 
he takes extra antacids and Pepto Bismol for this condition.  
There is no malnutrition.  

A review of the medical evidence of record shows that the 
Veteran has a multitude of symptoms for his GERD with liver 
steatosis with early fibrosis.  However, none of these 
symptoms have been found to produce considerable, if any, 
impairment of health.  The September 2008 VA examiner opined 
that the GERD with liver steatosis symptoms do not affect the 
Veteran's general health.  Although the Veteran has 
persistently recurrent epigastric distress with dysphagia and 
substernal arm or shoulder pain, he does not exhibit pyrosis 
and there is conflicting evidence regarding regurgitation.  
Importantly, the Veteran has not lost weight and he is not 
malnourished.  Moreover, the epigastric distress with 
dysphagia and substernal arm or shoulder pain has never been 
productive of considerable impairment of health.  As such, a 
higher rating is not warranted under 38 C.F.R. § 4.114, 
Diagnostic Code 7346.

The Board has also considered whether the Veteran could 
receive a higher or separate rating under any other 
diagnostic code, but has found none.  In this regard, the 
Board notes that the Veteran does not have diagnoses of 
pancreatitis, hepatitis C, hepatitis B, ulcer, any kind of 
colitis, or diverticulitis.  Moreover, he does not have 
splenomegaly, minor weight loss, incapacitating episodes of 
at least two weeks but less than four weeks during the past 
12 month period.  38 C.F.R. § 4.114, Diagnostic Codes 7304-
7307, 7312, 7319, 7323, 7345, 7347.  His symptoms, although 
constant, do not affect his general health; he has gained 
weight, not lost weight; and he has never been found to be 
incapacitated.  Therefore, a higher rating under any other 
diagnostic code is not in order.  

A separate rating for the liver steatosis with early fibrosis 
is also not warranted.  The 10 percent evaluation awarded 
under Diagnostic Code 7346 reflects, in the Board's opinion, 
the Veteran's predominant disability picture.  Any attempt to 
assign an additional rating for the liver steatosis with 
early fibrosis under another Diagnostic Code would constitute 
impermissible pyramiding.  38 C.F.R. § 4.14.  Therefore, the 
Board finds that the Veteran's service-connected GERD with 
steatosis of the liver with early fibrosis is appropriately 
rated as 10 percent disabling under Diagnostic Code 7346.

	IV.  Other Considerations

At no time during the appeal period have the Veteran's lipoma 
scars and GERD with steatosis of the liver with early 
fibrosis been manifested by greater disability than 
contemplated by the currently assigned ratings under the 
designated diagnostic codes.  Accordingly, staged ratings are 
not in order and the assigned ratings are appropriate for the 
entire period of the Veteran's appeal.  Fenderson v. West, 12 
Vet. App. 119, 126 (1999).

The Board has also considered whether the 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 Veteran has not required frequent 
hospitalization for his lipoma scars or his GERD with 
steatosis of the liver with early fibrosis, and the 
manifestations of such are consistent with the assigned 
schedular evaluations.  In sum, there is no indication that 
the average industrial impairment from the disabilities would 
be in excess of that contemplated by the evaluations assigned 
for the disabilities.  Therefore, referral of this case for 
extra-schedular consideration is not in order.  See Floyd v. 
Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. 
App. 337 (1996).  

ORDER

Service connection for a right shoulder disorder is granted.

An increased initial rating for lipoma scars, rated as 10 
percent disabling prior to October 23, 2008, and as 20 
percent disabling beginning on that date, is denied.

An initial rating in excess of 10 percent for GERD with 
steatosis of the liver with early fibrosis is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs