Citation Nr: 1117136 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 07-06 439A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to an increased disability rating for the service-connected gastrointestinal disability, variously diagnosed as gastroesophageal reflux disease (GERD), hiatal hernia, and irritable bowel syndrome (IBS), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1951 to September 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from October 2005 and February 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In the October 2005 rating decision, the RO denied entitlement to service connection for chloracne. The Veteran's Notice of Disagreement (NOD) with that decision was received at the RO in December 2005. The RO issued a Statement of the Case (SOC) in February 2007. The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in March 2007. Meanwhile, in the February 2006 rating decision, the RO denied entitlement to a disability rating in excess of 10 percent for the service-connected GERD. The Veteran's NOD with that decision was received at the RO in November 2006. The RO issued an SOC in February 2008. The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in April 2008. The Veteran initially requested to appear for a personal hearing before a Decision Review Officer (DRO) at the RO; however, he subsequently withdrew that request. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected gastrointestinal disability is manifested by GERD, IBS, and a small hiatal hernia, all of which are productive of discomfort by way of pyrosis and nausea on a daily basis, with frequent episodes of bowel disturbance with abdominal distress including bloating pressure and gas with nearly constant constipation; however, the GERD is not accompanied by dysphagia and regurgitation, and the IBS is not productive of constant diarrhea or constant alternating diarrhea and constipation. CONCLUSION OF LAW The criteria for the assignment of a 30 percent rating, but no higher, for the service-connected gastrointestinal disability with GERD, IBS and hiatal hernia, have been met during the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.113, 4.114, Diagnostic Codes 7319, 7346 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the claim for an increased rating for the service-connected GERD, the RO provided the appellant pre-adjudication notice by letter dated in May 2005. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the Veteran with a subsequent duty-to-assist letter in March 2009 that specifically provided notice of how the VA assigns ratings in compliance with the holding in Dingess. This notice letter was followed with a June 2010 Supplemental Statement of the Case (SSOC). The letter did not provide notice regarding the assignment of effective dates, however, the Board herein assigns a higher rating for the entire period of time covered by the appeal. If the Veteran wishes to provide any input as the RO's assignment of the effective date, he will have an opportunity to provide that input to the RO and therefore the notice error is not prejudicial. Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of the disability, and afforded the Veteran the opportunity to give testimony before the Board. The medical examination reports are adequate as they are based on a review of the history, an examination, and as information was provided that is sufficient to allow the Board to render an informed determination. All known and available records relevant to the gastrointestinal issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Increased Rating The Veteran seeks an increased rating for the service-connected gastrointestinal disability, rated as 10 percent disabling. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When 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. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The rating schedule also provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). When service connection was initially established for the Veteran's gastrointestinal disability in May 1972, the disorder was referred to as psychophysiological GI reaction, or, nervous stomach. A 10 percent rating was assigned, and the Veteran maintains that a higher rating is warranted. In a February 2006 rating decision, the RO denied the Veteran's claim for increase, and recharacterized the Veteran's gastrointestinal disability as GERD. As noted hereinbelow, the Veteran has also been diagnosed with a small hiatal hernia and IBS. As the Veteran's service treatment records reflect, the Veteran's symptoms of gas, bloating, nausea, stomach pain, heartburn, dyspepsia, reflux, constipation, etc. have remained consistent and constant since service. As such, it is reasonable to conclude that the Veteran's service-connected gastrointestinal disability, originally characterized as nervous stomach, encompasses the IBS and the GERD; and as such, the issue has been recharacterized on the front page of this decision to reflect that conclusion. The medical evidence shows that the service-connected GERD is productive of pyrosis on a daily basis. The Veteran feels nausea and gas, but has no vomiting, no hematemesis or melena. VA examination in February 2006 noted that the Veteran took omeprozole 20 mg two capsules daily for the GERD and simethicone 80 mg chewable tablets twice a day as needed for gas. The Veteran also reported constipation most of the time, occasional cramping, but no diarrhea. An upper GI series indicated mild spontaneous gastroesophageal reflux, no esophagitis. The impression was mild GERD with psychophysiological GI reaction. At a VA gastroenterology consult in October 2006, the Veteran reported abdominal cramps, constipation, and bloating for the past 50 years. The Veteran noted that he had undergone every conceivable test for these symptoms in the past. Considering this history, the examiner opined that the Veteran's symptoms most likely represented IBS that was constipation predominant. The examiner also noted that the Veteran was on Protonix for GERD. He was compliant with the medication, but still had some burning. He could not tolerate Prilosec. An esophagogastroduodenoscopy performed in October 2007 revealed a small hiatal hernia with antral erosions. At a VA examination in April 2010, the Veteran reported daily heartburn localized in the epigastrium, reflux after meals and at night, but denied any regurgitation of acid or food. The Veteran reported occasional nausea several times per week after meals, but no vomiting. Similarly, there was no hematemesis, no melena and the Veteran denied dysphagia. The Veteran was treated with Nexium 40 mg, once daily. The Veteran continued to complain of constipation. The Veteran's gastrointestinal disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.114, Diagnostic 7346 because GERD is generally rated by analogy to hiatal hernia pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346. Under that code, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. 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. Lastly, 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran does have two or more of the symptoms for the 30 percent evaluation of less severity. As noted above, more serious symptoms are not shown on either examination, such that a higher, 30 percent rating based on the GERD, alone, is warranted. In that regard, the Veteran denied dysphagia and regurgitation. However, he does have persistently recurrent epigastric distress with pyrosis accompanied by substernal, arm or shoulder pain. The Veteran specifically reported in November 2006 that he had pain in his arms and shoulders. Nevertheless, the level of impairment as a result of GERD is not considerable. In that regard, the examiner in 2006 assessed the GERD as mild after taking a history and conducting a physical examination. In addition, on examination in 2010, the examiner reported that there were no periods of incapacitation as a result of the GERD and the Veteran was described as not being in acute distress and as well-nourished. In addition, while there are symptoms of pain, he does not having vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. While the Veteran did weigh 154.7 in August 2003 and then 147 in April 2010, the examiner assessed him as well nourished. Moreover, as only a minor weight loss is shown and the evidence does not show vomiting, hematemesis, melena, anemia or other symptoms that result in severe impairment of health, a 60 percent evaluation is not warranted. Importantly, however, the Veteran's frequent symptoms of gas, bloating and constipation are not considered by this rating criteria. Moreover, the Veteran has also been diagnosed with IBS. According to 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. 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. IBS is rated by analogy to irritable colon syndrome pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, a noncompensable rating is assigned for mild symptoms, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms with frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is the maximum rating and is warranted for severe episodes of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. As explained by the VA gastroenterologist in October 2006, the Veteran has IBS that is predominately manifested by constipation with bloating and gas. The Veteran has some cramping, but no diarrhea. Thus, the Veteran does not meet the criteria for the assignment of the next higher, 30 percent rating based on IBS alone. However, because the Veteran has an overall disability picture that is not adequately rated under one diagnostic code, yet, only one diagnostic code is permitted despite the fact that the Veteran has been diagnosed with IBS, hiatal hernia, and GERD, his single disability rating may be elevated to the next higher rating based on the severity of the overall gastrointestinal condition. In other words, his IBS symptoms, combined with his GERD symptoms, result in an overall disability picture, which warrants elevation of the GERD rating to the next higher, 30 percent rating under Diagnostic Code 7346, as the GERD reflects the predominant disability picture. Here, because there is no diarrhea associated with the overall IBS picture, the predominant disability therefore appears to be the GERD. Where, as here, the Veteran has two (or more) service-connected gastrointestinal disabilities, two separate ratings 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. Based on the foregoing medical evidence noted above, the predominant disability in this case is the GERD; however, the IBS symptoms certainly add to the overall disability picture. Thus, in resolving all doubt in the Veteran's favor, the Veteran's 10 percent rating for the service-connected GERD is elevated to the next higher 30 percent rating, in consideration of the IBS and hiatal hernia symptomatology not previously considered, and given that the IBS may not be separately rated pursuant to the regulatory framework at 38 C.F.R. § 4.114. The criteria for the assignment of this 30 percent rating have been met during the entire appeal period, as there are not periods of time during which the evidence shows that the overall disability picture has been more disabling than currently rated. Hart v. Mansfield, 21 Vet. App. 505 (2007). In sum, the criteria for the assignment of a 30 percent rating, but no higher, have been met for the service-connected gastrointestinal disability to include GERD, IBS, and hiatal hernia during the entire appeal period, but the preponderance of the evidence is against the claim for the assignment of a rating in excess of 30 percent for the service-connected gastrointestinal disability; there is no doubt to be resolved; and a rating in excess of 30 percent is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, there has been no showing that the service-connected gastrointestinal disability under consideration here has rendered impracticable the application of the regular schedular standards. The Veteran's claim was granted with the next higher rating assigned to the Veteran's disability, and the symptoms are adequately represented by the rating currently assigned. The regular scheduler standards contemplate the symptomatology shown in this case. In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular schedular standards. (CONTINUED ON NEXT PAGE) ORDER An increased rating of 30 percent, but no higher, for the service-connected gastrointestinal disorder, to include GERD, IBS and hiatal hernia, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran seeks service connection for a skin disability, which he initially characterized as "chloracne." The Veteran explained that he first contracted a skin rash during service while overseas and has had problems with a skin rash ever since. STRs indeed show that the Veteran presented with a skin rash on several occasions during service. In August 1966, the Veteran presented with pruritis of the palms. The impression was urticaria. In September 1966, the Veteran continued to report itching, with red spots on his palms, soles, and body. Hyperpigmentation was noted on the Veteran's soles, and there was a raised, scarred, excoriated lesion on the left upper arm. In September 1968, the Veteran presented with fine papula rash over the forearms. At his VA examination of the skin in July 2005, the Veteran reported that his skin condition began during service and had continued since that time, although it had improved somewhat since service, with the use of topical ointments, such as his current use of ketoconazole 2% cream. The Veteran noted that the rash was mostly confined to his groin area, genitalia, and feet. Examination of the skin was negative for a current outbreak of rash or lesions at that time; however, the examiner did note evidence of hyperpigmented areas in the inguinal area and to some extent on the scrotal skin likely from past skin rashes. The diagnosis was chronic recurrent dermatitis of groin and scrotal skin as well as areas of his feet and toes which are likely to be from a fungal dermatitis, although not active currently. The examiner specifically noted, however, that the Veteran did not have a diagnosis of chloracne and opined that the history of his recurrent dermatitis is not related to chloracne or Agent Orange exposure. The examiner did not opine as to whether the Veteran's current skin disorder was as likely as not incurred in service. Regardless of the fact that the Veteran is claiming that he contracted a skin disorder due to Agent Orange exposure, VA has the duty to consider all possible theories of entitlement. Here, consideration was not given to whether service connection is warranted on a direct basis. That is, the RO did not consider whether the Veteran's current skin disorder had its onset during service. This is significant given the STRs show complaints and treatment for skin disorders, including skin rashes on the soles of the feet, a condition which the Veteran currently complains of. Furthermore, although no current skin rash was shown on examination in July 2005, the examiner did note evidence of past skin rashes. In other words, the examiner explained that the Veteran's hyperpigmentation was, in essence, evidence of a past skin condition, that may very well be chronic in nature. In light of the foregoing, the July 2005 examiner is inadequate and the Veteran must be afforded a new examination to determine the current nature and likely etiology of the current skin disability. The VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Obtain and associate with the claims file any pertinent VA records, not currently of record, pertinent to the claim on appeal dated from February 2008 to the present. 2. Thereafter, schedule the Veteran for a VA dermatological examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests must be performed, and all findings reported in detail. The Veteran must be provided with an opportunity to describe problems he has had with his rash since his discharge from service, even if his rash is not active at the time of the examination. The examiner is specifically requested to opine as to whether it is less likely than not (less than a 50 percent probability) or at least as likely as not (50 percent probability or greater) that any current skin disorder including, but not limited to a fungal dermatitis, (regardless of whether it is active at the time of examination) was incurred during active service. In that regard, the examiner's attention is specifically directed to the service treatment records and the Veteran's statements of continuity of symptomatology since service. In offering an assessment, the examiner must specifically acknowledge and discuss the Veteran's report in discussing whether he has a current skin disability that is related to or had its onset in-service. A complete rationale must be set forth in the report provided. 3. After the requested development has been completed, and after undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs