Citation Nr: 1014242 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 05-16 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 30 percent for gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from October 1961 to October 1963 and from February 1991 to March 1991. The Veteran also had service in the Alabama Air National Guard from January 1975 to July 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of September 2004 and March 2005 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The Veteran requested a hearing before a decision review officer (DRO). The hearing was scheduled and subsequently held in February 2005. The Veteran testified at that time and the hearing transcript is of record. The Veteran's claim was previously remanded in August 2007 for additional evidentiary development. The requested development was completed and in March 2009, the Board denied the Veteran's claim of entitlement to an evaluation in excess of 30 percent for GERD on the grounds that his GERD was not manifested by material weight loss, hematemesis, melena, or moderate anemia, nor were the symptoms productive of severe impairment of health. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which in a January 14, 2010 order, granted a joint motion for remand. The Veteran's appeal with respect to that portion of the Board's March 2009 decision which dealt with his service- connected femoral hernia was dismissed. The Court vacated the Board's determination pertaining to the Veteran's service-connected GERD and remanded the issue. FINDING OF FACT The Veteran's service-connected GERD is manifested by difficulty swallowing, nausea, vomiting, episodic regurgitation and pain, as well as pyrosis, esophagitis, and esophageal stricture. Competent medical evidence described these symptoms as "chronic," "severe," and "moderately severe." Resolving all doubt in the Veteran's favor, these symptom combinations are productive of severe impairment of health. CONCLUSION OF LAW The criteria for an evaluation of 60 percent for gastroesophageal reflux disease are met for entire period of time covered by this appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.114, Diagnostic Code 7346 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION In the current case, the Veteran claims entitlement to an increased disability rating for GERD. The Veteran initially sought service connection for esophagitis in June 1999, however, the RO denied service connection for esophageal spasms with a sliding hiatal hernia in a May 2000 rating decision. The Veteran timely perfected an appeal. The Board subsequently issued a decision in May 2003 and re- phrased the issue on appeal from entitlement to service connection for esophageal spasms with a sliding hiatal hernia to entitlement to service connection for GERD and granted service connection. The Board decision also referred the separate issue of entitlement to service connection for a femoral hernia, raised during the Veteran's November 2001 Travel Board hearing, to the RO for further development. In a May 2003 rating decision, the RO evaluated the Veteran's GERD under 38 C.F.R § 4.114, Diagnostic Code 7346 as 10 percent disabling, effective June 25, 1999. The RO originally denied the Veteran's claim of entitlement to service connection for a femoral hernia in January 2004. The Veteran filed a timely notice of disagreement and in September 2004, the RO granted the Veteran's service connection claim for a femoral hernia. However, the RO combined the Veteran's previous service connection award for GERD with the service connection award for a femoral hernia and continued to evaluate the Veteran's disability under Diagnostic Code 7346 as 10 percent disabling, effective June 25, 1999. The Veteran timely perfected this appeal. The RO subsequently increased the Veteran's disability evaluation in March 2005 to 30 percent, effective November 5, 2001. Disability ratings are determined by the application of the facts presented to 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 in or aggravated by military service and the residual conditions in civilian occupations. 38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2009). The present level of disability is of primary concern where, as here, an increase in an existing disability rating based on established entitlement to compensation is at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Generally, "pyramiding," the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14 (2009). A single rating 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. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Based upon the guidance of the Court in Hart, the evidence does not show a variance in the signs and symptoms of the Veteran's service-connected GERD during the claim period such that staged ratings are for application. However, the Board finds that the evidence supports an evaluation of 60 percent for the Veteran's GERD for the entire period of time covered by the appeal. The rationale for this conclusion is discussed in greater detail below. The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.114. Ratings under Diagnostic Codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114 (2009). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. GERD is rated analogously to hiatal hernia under 38 C.F.R. § 4.114, Diagnostic Code 7346. According to 38 C.F.R. § 4.114, Diagnostic Code 7346, a 30 percent evaluation is assigned for a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation, the highest schedular rating available under this code provision, is assigned for a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Factual Background and Analysis The Veteran was afforded a VA Compensation and Pension (C&P) examination in October 2000. The examiner noted that the Veteran's past medical history was significant for gastritis, hiatal hernia, and GERD. The Veteran reported having heartburn as well as difficulty swallowing dry foods. The Veteran denied nausea, vomiting, hematemesis, or melena. Upon physical examination, the examiner found no evidence of distress or anemia. The impression was GERD. The Veteran underwent a private esophagogastroduodenoscopy (EGD) in July 2001. The results were interpreted to show a sliding hiatal hernia, esophageal stricture, and erythema in the bulb consistent with duodenitis. The Veteran was instructed to eat his food in small bites and to chew meat and bread particularly well. The Veteran was afforded another VA C&P examination in September 2004. The Veteran indicated at the time of the examination that he underwent a right femoral hernia repair surgery and a right direct and right indirect inguinal hernia repair surgery in August 2004. The Veteran reported no problems postoperatively, but stated that he experienced persistent tenderness and soreness at the umbilical scar site. The Veteran also reported having heartburn, nausea, and occasional vomiting. The Veteran obtained relief from these symptoms with Protonix. Following a physical examination, the impression was (1) history of femoral hernia and right direct and right indirect inguinal hernias status- post repairs with laparoscopic mesh placement, currently healing well; and (2) GERD on treatment with Protonix. The Veteran's wife submitted a statement dated February 2005 in support of the current claim. She indicated that the Veteran had approximately 10-15 reflux experiences per month which resulted in "a great deal of discomfort and distress." She further stated that the Veteran experienced nausea, occasional vomiting, and embarrassment when such "attacks" occurred in public. The Veteran also slept with his head elevated. The Veteran also testified before a DRO that same month. In particular, the Veteran testified that he experienced 10-15 reflux episodes each month. He stated that his gastrointestinal disability was manifested by dysphagia, nausea, regurgitation, and chest, arm, and throat pain. An EGD administered by Z. Nash, M.D. in August 2005 revealed evidence of non-erosive gastritis. The Veteran's esophagus and duodenal bulb were described as normal. An antral biopsy conducted that same month showed evidence of minimal chronic gastritis. The Veteran presented to J. Dailey, M.D. in May 2007 for a physical examination. The Veteran reported increased difficulty with swallowing in the two days prior to his admission to the emergency room. The Veteran's past medical history was significant for severe, chronic GERD and hernia repair, among other conditions. A "barium swallow" conducted at that time showed complete obstruction at the level of the distal esophagus. During the course of the hospitalization, some stricture was present, but the food impaction passed. Aggressive anti-reflux measures were to be undertaken for a period of several days. The impression was esophageal obstruction, "probably secondary to severe esophagitis" with an otherwise normal esophagus; hiatal hernia; moderately severe gastritis in the antrum and body of the stomach; ulcers in the fundus; and bulboduodenitis with an otherwise normal duodenum. The assessment was esophageal stricture, GERD, and peptic ulcer disease (PUD) several days later. The Veteran underwent another VA C&P examination in August 2008. The examiner noted that the Veteran's hiatal hernia was his "major problem." The Veteran's symptoms, according to the examiner, included difficulty swallowing, episodic regurgitation, and pyrosis since 1992. The examiner also noted that the Veteran was hospitalized in May 2007 after reporting difficulty swallowing as well as developing a "marked increase" in dysphagia. The Veteran reported a history of nausea and vomiting both prior to and following meals, heartburn, dysphagia, and reflux. The Veteran denied hematochezia, melena, diarrhea, constipation, anemia, weight loss, or weight gain. Upon physical examination, the Veteran was in no acute distress. No evidence of epigastric or abdominal tenderness was found. The examiner observed the presence of a well- healed two and one-half inch surgical scar in the right inguinal area. The scar was non-tender, and no evidence of deep scarring, inflammation, tenderness, or redness of the scar was noted. The examiner also noted a small laparoscopic scar near the umbilicus. The right inguinal area was tender to deep palpation, but no evidence of recurrent inguinal or femoral hernias was found. Laboratory bloodwork administered at the time of the examination was negative for anemia. The impression was (1) moderately severe GERD with esophageal stricture, hiatal hernia, moderately severe gastritis, and dysphagia with solid foods; and (2) status-post femoral hernia repair. Given the evidence of record, the Board finds that the evidence supports an evaluation of 60 percent for GERD for the entire period of time covered by this appeal. According to Diagnostic Code 7346, a 60 percent evaluation is warranted for hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Although the Veteran reported on numerous occasions during the pendency of this claim symptoms such as pain and occasional nausea and vomiting, the evidence of record does not reflect, nor does the Veteran allege, that he experienced material weight loss and hematemesis or melena with moderate anemia. In fact, no objective evidence of material weight loss and hematemesis or melena with moderate anemia was found at any time during the period covered by this appeal. The Veteran also specifically denied having these symptoms at the time of VA examinations conducted in October 2000 and August 2008. However, the Board finds that the Veteran's GERD is manifested by difficulty swallowing, nausea, vomiting, episodic regurgitation and pain, as well as pyrosis, esophagitis, and esophageal stricture. Competent medical evidence also described these symptoms as "chronic," "severe," and/or "moderately severe." See August 2008 VA C&P examination report; Dr. Dailey's May 2007 private treatment record. Thus, resolving all doubt in the Veteran's favor, the Board finds that these symptom combinations are productive of severe impairment of health. Accordingly, the Veteran is entitled to a 60 percent evaluation for his service-connected GERD for the entire period of time covered by the appeal under Diagnostic Code 7346. The Board has also considered other digestive disability diagnostic codes contained in 38 C.F.R. § 4.114. The Board is aware that the Veteran has been diagnosed as having multiple gastrointestinal disabilities during the pendency of the appeal, including esophageal stricture and/or esophagitis, duodenitis, gastritis, ulcers, PUD, and a sliding hiatal hernia. As noted in the Board's March 2009 decision, Diagnostic Code 7203 (stricture of the esophagus) is potentially applicable in this case as this condition is well-documented in the Veteran's claims file. According to Diagnostic Code 7203, a 30 percent evaluation is assigned for moderate stricture of the esophagus. A 50 percent evaluation is assigned for severe stricture of the esophagus, permitting liquids only. An 80 percent evaluation is assigned for stricture of the esophagus permitting passage of liquids only, with marked impairment of general health. Spasm (Diagnostic Code 7204) and acquired diverticulum (Diagnostic Code 7205) of the esophagus are rated analogously to stricture of the esophagus under Diagnostic Code 7203. Here, however, the Board finds that a separate rating is not warranted in this case under Diagnostic Code 7203. As noted above, the Board resolved all doubt in the Veteran's favor when assigning a 60 percent evaluation for the entire period of time covered by the appeal. In so doing, the Board considered the nature and severity of the Veteran's esophagitis and/or esophageal stricture (including the Veteran's complete, albeit temporary, obstruction which occurred in May 2007 and the subsequent recommendation that he have periodic dilatations), and determined that the Veteran's esophagitis and/or esophageal stricture, along with the other symptoms described in the evidence above, more nearly approximate the criteria for severe impairment of health. See generally, 38 C.F.R. § Diagnostic Code 7346. In addition, the esophageal stricture manifests as difficulty swallowing, and this was considered in assigning the 60 percent rating. Furthermore, there is no evidence of record to show that the Veteran is able to pass liquids only; therefore, a higher rating is not warranted under Diagnostic Code 7203. The Board further finds that any attempt to assign a separate evaluation for esophagitis and/or esophageal stricture, on top of the 60 percent rating currently assigned, would constitute impermissible pyramiding based on the manifestations that were considered in assigning that rating. See 38 C.F.R. 4.14. Regarding the Veteran's other diagnosed disabilities, (i.e., duodenitis, gastritis, ulcers, PUD, and a sliding hiatal hernia), 38 C.F.R. § 4.114 makes clear that ratings under Diagnostic Codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. Instead, a single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. PUD, along with GERD, may be rated by analogy to hiatal hernia under Diagnostic Code 7346. As such, the symptoms related to the Veteran's hiatal hernia and PUD are contemplated in the currently assigned 60 percent rating. Other potentially applicable diagnostic codes for duodenitis, gastritis, and PUD include Diagnostic Codes 7304, 7305, 7306, and 7307. Diagnostic Code 7304 contemplates a rating for gastric ulcers. Gastric ulcers are rated under Diagnostic Code 7305, which pertains to duodenal ulcers. According to Diagnostic Code 7305, a 10 percent evaluation is assigned for a mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent evaluation is assigned for a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times per year averaging ten days in duration; or with continuous moderate manifestations. A 40 percent evaluation is assigned for a moderately severe duodenal ulcer which is less than severe, but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times per year. A 60 percent evaluation, the highest schedular rating available under this code provision, is assigned for a severe duodenal ulcer 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. Diagnostic Code 7306 contemplates ratings for marginal (gastrojejunal) ulcers. According to Diagnostic Code 7306, a 10 percent rating is assigned for mild marginal ulcers with brief episodes of recurring symptoms once or twice yearly. A 20 percent evaluation is assigned for moderate marginal ulcers with episodes of recurring symptoms several times a year. A 40 percent evaluation is assigned for moderately severe marginal ulcers with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 60 percent evaluation is assigned for severe marginal ulcers, same as pronounced with less pronounced and less continuous symptoms with definite impairment of health. A 100 percent evaluation is assigned for pronounced marginal ulcers, periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss; totally incapacitating. Diagnostic Code 7307 contemplates a rating for hypertrophic gastritis. A 10 percent rating is assigned for chronic hypertrophic gastritis with small nodular lesions and symptoms. A 30 percent rating is assigned for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation, the highest schedular rating available under this diagnostic code, is assigned for chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas. A notation to Diagnostic Code 7307 indicates that atrophic gastritis is a symptom of a number of diseases, including pernicious anemia. The rater is directed to evaluate atrophic gastritis on the basis of the underlying condition. The Board has assigned a 60 percent evaluation for the entire period of time covered by the appeal and no higher ratings are available in this case pursuant to Diagnostic Codes 7304, 7305, or 7307. With respect to Diagnostic Code 7306, the Veteran does not allege, nor does the evidence of record show, that he has the symptoms necessary to warrant a 100 percent evaluation as he does not have symptoms of recurring melena or hematemesis and weight loss that are totally incapacitating. The Board further finds that there is also no evidence that the manifestations of the Veteran's service-connected GERD are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. Furthermore, as there is no indication in the record as to why the Veteran's case is not appropriately rated under the schedular criteria, extraschedular consideration is not warranted in this case, particularly where, as here, the signs and symptoms of the Veteran's service-connected GERD are addressed by the relevant criteria as discussed above. In this regard, it is also pointed out that the assignment of a 60 percent schedular disability rating shows that the Veteran has functional impairment that is significant. The currently assigned rating also contemplates that there is commensurate industrial impairment as a result of the Veteran's service-connected GERD. See also, 38 C.F.R. § 4.1 (2009) (noting that the percentage ratings represent as far as can be practically determined the average impairment in earning capacity resulting from service-related diseases and injuries and their residual conditions in civilian occupations). Moreover, there is no evidence of frequent periods of hospitalization related to the Veteran's service- connected GERD. Therefore, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also, Bagwell v. Brown, 9 Vet. App. 237 (1996). In reaching these conclusions, the Board has applied the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Veteran did not receive proper VCAA notice in this case. However, the Board finds that any notice errors with respect to the information and evidence needed to substantiate the Veteran's increased rating claim for GERD did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). In October 2004, the Veteran was advised to submit evidence that his service-connected disability increased in severity. For example, the Veteran was encouraged to submit a statement from a doctor that contained physical and clinical findings, results of laboratory tests or x-rays, statements from other individuals who were able to describe from personal knowledge and observations the way in which the Veteran's disability became worse, and VA or private treatment records which documented ongoing treatment for his disability. The RO provided additional notice in October 2007 of the information and evidence needed to establish a disability rating and effective date for the disability on appeal pursuant to the Court's decision in Dingess. For instance, the Veteran was informed to submit evidence showing the nature and severity of his condition, the severity and duration of the symptoms, and the impact of the condition and/or symptoms of the Veteran's employment. Specifically, the Veteran was encouraged to submit information showing ongoing VA treatment, recent Social Security Administration decisions, statements from employers about job performance, lost time, or other evidence showing how the disability affected his ability to work. The Veteran was also notified that he could submit lay statements from individuals who witnessed how the disability affected him. The Veteran was also notified to provide any information or evidence not previously of record that pertained to the Veteran's level of disability or when it began. The Veteran's claim was readjudicated following these notices by way of a September 2008 supplemental statement of the case (SSOC). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The Veteran's service treatment and post-service treatment records have been obtained. The Veteran was also afforded multiple VA examinations in connection with the current claim. Accordingly, the Board finds that VA has complied, to the extent required, with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER An evaluation of 60 percent for GERD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs