Citation Nr: 1107379 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 07-28 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial rating in excess of 10 percent for gastrointestinal reflux disease (GERD) with irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Associate Counsel INTRODUCTION The Veteran had active military service from December 1995 to April 1996 and from January 2000 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois awarded service connection for GERD with IBS and assigned a rating of 10 percent effective from January 11, 2006. [The Veteran moved to Iowa during the appeal, and jurisdiction was transferred to the RO in Des Moines, Iowa]. The Veteran testified at a hearing before a decision review officer (DRO) in October 2007. A transcript of the hearing is of record. FINDING OF FACT The Veteran's GERD with IBS when not treated with medication is manifested by daily symptoms of pyrosis and occasional regurgitation but not by persistently recurrent epigastric distress with dysphagia, substernal or arm or shoulder pain, or symptoms productive of considerable impairment of health, more or less constant abdominal distress, diarrhea, or severe IBS. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for GERD with IBS have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.113, 4.114, Diagnostic Codes (DCs) 7319, 7346 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). Here, a pre-decisional notice letter dated in March 2006 complied with VA's duty to notify the Veteran with respect to the underlying issue of entitlement to service connection for GERD and IBS. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A second March 2006 letter in particular notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran's claim for service connection for GERD with IBS was granted by the December 2006 rating decision and was evaluated as 10 percent disabling, effective from January 11, 2006. The Veteran perfected a timely appeal with respect to the 10 percent rating initially assigned to this service-connected disability. Because the Veteran's claim was initially one for service connection, and because that initial claim has been granted, VA's obligation to notify the Veteran was met as the claim for service connection was obviously substantiated. Id. Thus, any deficiency in notice relating to the Veteran's appeal for an increased rating is not prejudicial to him. Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records, and secured an examination in furtherance of his claim. VA has no duty to inform or assist that was unmet. A VA opinion with respect to the issue on appeal was obtained in April 2006. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Thus, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the examination for the Veteran's claim is over four years old. However, the Board notes that the "mere passage of time" does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In Palczewski, the United States Court of Appeals for Veterans Claims (Court) noted that the veteran did not submit additional evidence showing a change in his condition, nor did he allege at a hearing that the condition had worsened. Further, the Court noted a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim. Palczewski, 21 Vet. App. at 183. In this case, there is no medical or lay evidence alleging that the Veteran's service-connected disability is worse now than it was at the time of the April 2006 VA examination. Moreover, the Veteran's outpatient treatment records dated through November 2009, which document the Veteran's symptomatology, are of record. Therefore, the Board finds that the medical evidence of record is sufficient to render a decision on this claim. Analysis The Veteran contends that he is entitled to an initial rating in excess of 10 percent for his GERD with IBS due to the severity and frequency of his symptomatology. The Board finds that the pertinent medical findings, as shown in the examinations conducted during the current appeal, directly address the criteria under which this service-connected disability is evaluated and are, thus, more probative than the subjective evidence of complaints regarding the severity of the pertinent symptomatology. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should 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. As noted above, the United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125- 26 (1999). Consequently, the Board will evaluate the Veteran's GERD with IBS disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. 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 (2010). Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. In this case, the Veteran has been diagnosed with GERD and IBS. The Veteran's service-connected GERD with IBS is rated as 10 percent disabling under 38 C.F.R. § 4.114, DC 7346, which evaluates impairment resulting from a hernia hiatal. Under DC 7346, a 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. A 30 percent rating is warranted where 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 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. 38 C.F.R. § 4.114, DC 7346 (2010). The Board observes that IBS is rated by analogy under 38 C.F.R. § 4.114, DC 7319, irritable colon syndrome (spastic colitis, mucous colitis, etc.). Under this diagnostic code, a 30 percent rating is warranted when the disability is severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 10 percent rating is warranted when the disability is moderate; frequent episodes of bowel disturbance with abdominal distress. A zero percent, or noncompensable, rating is warranted when the disability is mild; disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2010). In analyzing the evidence, the Board will consider which diagnostic code is more appropriate to use in rating the Veteran's disability. At a VA examination in April 2006, the Veteran reported taking medication for both his GERD and IBS. He reported that since taking medication for his GERD, he no longer had a burning sensation in his throat, but he did continue to wake up at night with fluid in the back of his throat. With regards to his IBS, the Veteran reported that since taking medication, he had two to three diarrhea-like bowel movements a day. According to VA treatment records dated through November 2009, the Veteran does not have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. The Board acknowledges that in July 2007, the Veteran reported symptoms of heartburn, indigestion, and abdominal pain; however, there is no indication that such symptoms were accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. Additionally, the records do not show symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Moreover, there is no indication that the Veteran's IBS is severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The Veteran testified in October 2007 that he would have bad heartburn and sometime vomiting if he did not take medication for his GERD. He also testified that his GERD was worse than his IBS. He reported having diarrhea two to three times a week. He denied problems swallowing, constipation, pain in his arms/shoulders, anemia, and recent weight loss. The Veteran further testified that he had no symptoms when he took his GERD medication except waking up with phlegm every morning. The Veteran indicated that it was a couple of weeks the last time he forgot to take his pill. His wife testified that he did not forget his medication very much anymore. Here, based on a review of the evidence, the Board finds that an initial rating in excess of 10 percent is not warranted at any time since the award of service connection. Although the Veteran has reported pyrosis and vomiting, he has indicated only such symptomatology if he forgets to take his medication. The Veteran himself testified that he had no symptoms when he took his GERD medication, while his wife indicated that he did not forget to take his medication very much anymore. Even without medication, the evidence does not show that the Veteran's symptoms are accompanied by substernal or arm or shoulder pain or that his symptoms are productive of considerable impairment of health. The Veteran specifically denied having arm or shoulder pain at his October 2007 hearing and no treatment records show such complaints. Accordingly, the Board concludes that the evidence of record does not support the criteria required for the next higher rating of 30 percent for this service-connected disability. In addition, the Board has considered whether a rating higher than 10 percent for the Veteran's GERD with IBS is warranted under DC 7319. In this regard, the evidence shows that the Veteran has diarrhea-like bowel movements at least two to three times per week; however, the medical evidence received during the current appeal does not show more or less constant abdominal distress, diarrhea, or severe IBS, which is necessary for a 30 percent rating. Moreover, the Veteran has not testified to such symptoms. Therefore, a 30 percent rating under DC 7319 is not warranted. 38 C.F.R. § 4.114, DC 7319. Additionally, a separate compensable rating for the Veteran's IBS cannot be granted since 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. As discussed above, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Thus, in accordance with the above, the Board has considered all of the evidence and finds that DC 7346 used for rating his GERD reflects the predominant disability picture. Indeed, the Veteran testified that his GERD was worse than his IBS. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's GERD with IBS warrants a rating in excess of 10 percent at time since the award of service connection. The Board finds, therefore, that the evidence of record does not support the schedular criteria required for the next higher rating of 30 percent for this service-connected disability. This claim must be denied. The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2010). The current evidence of record does not demonstrate that the GERD with IBS disability has resulted in frequent periods of hospitalization or in marked interference with employment. § 3.321. In this regard, the Board notes that it is undisputed that the Veteran's GERD with IBS disability has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2010). In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. 38 C.F.R. §§ 4.10, 4.40. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected GERD with IBS. Indeed, the Veteran's outpatient treatment records show that he is currently employed full-time. See February 2009 primary care note. Thus, the question of entitlement to a total disability rating based on individual unemployability due to this service- connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial rating in excess of 10 percent for GERD with IBS is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs