Citation Nr: 1123595 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 08-09 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of zero percent for prepyloric ulcers. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from February 1970 to December 1974. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran requested a BVA hearing in his March 2008 substantive appeal (VA Form 9), he specifically withdrew his request in a July 2010 VA Form 21-4138, signed by his representative. There are no other outstanding hearing requests of record. In August 2008, the RO denied service connection for alcohol abuse and depression; the Veteran disagreed with the denial; and a statement of the case was issued in February 2009. However, the Veteran did not perfect an appeal as to either claim, and the Board will not address them here. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. For the entire period of this appeal, the Veteran's prepyloric ulcers have been manifested by pyrosis and regurgitation; however the Veteran's symptoms have not been productive of considerable impairment of health or severe impairment of health during any period. CONCLUSION OF LAW The criteria for an initial rating of 10 percent for prepyloric ulcers are met for the entire initial rating period; the criteria for an initial rating in excess of 10 percent have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). The rating claim for prepyloric ulcers arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003. The United States Court of Appeals for Veterans Claims (CAVC) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service private and VA treatment records, and the Veteran's statements. In addition, the Veteran was afforded a VA examination in August 2007. The Board finds that this examination was adequate. In so finding, the Board notes that it was performed by a medical professional; the Veteran's history was taken; and a complete examination with clinical measures was conducted. Moreover, conclusions reached and diagnoses given were consistent with the examination report. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The Veteran has not 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 Veteran is required to fulfill VA's duty to assist the Veteran 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). The Veteran submitted additional medical evidence after the most recent supplemental statement of the case was issued, but he did not submit a waiver of initial RO consideration of that evidence. Nevertheless, the Board finds that a remand is not necessary for such RO consideration. The report of a November 10, 1997 hospital admission examination and EDG with biopsy, and the report of a November 15, 1997 hospital discharge summary, are duplicates of evidence already of record. The report of an October 2000 colonoscopy, the report of a June 18, 2001 colonoscopy, and the report of a March 24, 2005 colonoscopy with polypectomy and biopsy of rectal lesion, are not relevant to the matter on appeal. Schedular Rating for Prepyloric Ulcers Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27 (2010). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When the schedule does not provide a zero percent evaluation for in a Diagnostic Code, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2010). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In the April 2007 rating decision, the RO granted service connection and assigned a noncompensable initial rating for prepyloric ulcers, pursuant to Diagnostic Code 7399-7304, effective November 4, 2003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Under 38 C.F.R. § 4.114, gastric ulcers (Diagnostic Code 7304) and duodenal ulcers (Diagnostic Code 7305) have the same rating criteria. A rating of 60 percent is warranted for severe symptoms 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. A 40 percent rating is warranted for symptoms that are moderately severe - that is, less than severe but with impairment of health manifested by anemia and with weight loss; or for recurrent incapacitating episodes averaging 10 days or more in duration at least four times per year. A 20 percent rating is warranted for symptoms that are moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations. A rating of 10 percent rating is warranted for symptomatology that is mild with recurring symptoms once or twice yearly. The Board notes that the results of an August 2007 VA examination show no evidence of any ulcers (prepyloric or gastric). Thus, a rating under Diagnostic Code 7304 is not appropriate. However, a current upper GI series did show the presence of gastroesophageal reflux (GERD). Hiatal hernias and GERD are rated under 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. Ratings under diagnostic codes 7301 to 7329, inclusive, 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 Board finds that a 10 percent initial rating is supported under Diagnostic Code 7346. The Veteran has reported pyrosis (heartburn) and regurgitation. The Veteran is competent to report his symptoms, and his reports are consistent with the medical evidence, and are deemed to be credible. The August 2007 VA examination report reveals that the Veteran has episodes of abdominal colic, nausea, vomiting, and abdominal distention one time a month, with duration of one to three days. Other symptoms include nausea and occasional vomiting and reflux. The Veteran reported a gnawing or burning pain two times a month. These episodes occur in afternoon and night and last three hours to two to three days. The sensation is located in the left, middle, or upper quadrant of the abdomen. Symptoms are relieved by Prevacid one time a day, and Maalox and Mylanta three times a day. The VA examiner also reported a history of nausea with frequency about three times a month, which seemed to be aggravated by stress, positive dietary changes, spicy foods, fried foods, and which usually lasts about one to two days. There was also a history of vomiting, with occasional episodes of vomiting, about once a month, as well as episodes of dry heaves, which resolve with the use of cold towel, at times it is undigested food and clear secretions. Thus, as the evidence shows pyrosis and regurgitation, two of the criteria for a 30 percent rating (of less severity) are met, and a 10 percent rating is warranted. However, the Board also finds that a rating in excess of 10 percent are not met for any period. Regarding the criteria for a 30 percent rating, there is no report or assertion of dysphagia (difficulty swallowing); there is no report or assertion of substernal or arm or shoulder pain; and there is no report or assertion of considerable impairment of health. Notably, the August 2007 examiner found the Veteran's weight was 216, and the examiner noted that there had been no weight change, loss or gain. There were no signs of significant weight loss or malnutrition; there were no signs of anemia. Examination revealed positive bowel sounds; no ascites; no hepatosplenomegaly; and no masses noted on palpation. Regarding the criteria for a 60 percent rating, as noted above, there is no finding or assertion of material weight loss. The August 2007 examiner found no episodes of hematemesis, and the last episode of melena was in 1998. There were no signs of anemia. Moreover, as the Board has found above that there was not considerable impairment of health, for the same reasons, the Board finds that there is not severe impairment of health. While symptoms of pain and vomiting are present, and are symptoms associated with a 60 percent rating, it cannot be said that the criteria for the 30 percent are more nearly approximated than those for a 10 percent rating. In essence, pain and vomiting are criteria for each compensable rating under Diagnostic Code 7346. The crucial distinction between levels above 10 percent appears to be the underlying descriptors of considerable impairment of health and severe impairment of health. Here, such criteria are neither met nor approximated, and a rating in excess of 10 percent is not warrant for any period. Extraschedular Consideration The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2010), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if 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." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected prepyloric ulcers. The rating criteria specifically provide for ratings based on the presence of pyrosis and regurgitation. Because the schedular rating criteria are adequate to rate the Veteran's service-connected prepyloric ulcers, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). In sum, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 10 percent initial rating are met for the entire initial rating period. However, the weight of the evidence is against a finding of an initial rating in excess of 10 percent. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. ORDER A 10 percent initial rating for prepyloric ulcers, but no higher, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs