Citation Nr: 1119654 Decision Date: 05/20/11 Archive Date: 05/27/11 DOCKET NO. 05-37 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for a hiatal hernia with gastroesophageal reflux (GERD) and duodenal peptic ulcer disease. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION 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 Veteran served on active duty from September 1944 to May 1946 and from August 1950 to June 1951. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in San Juan, the Commonwealth of Puerto Rico (RO). The Board remanded the case to the RO for further development in July 2008 and in June 2009. Development has been completed and the case is once again before the Board for review. FINDING OF FACT The Veteran's hiatal hernia with GERD and duodenal peptic ulcer disease is manifested by recurrent epigastric distress, acid reflux, and heartburn, and is well-controlled with medication. The Veteran's hiatal hernia with GERD is not accompanied by substernal or arm or shoulder pain, nor productive of considerable impairment in health. The Veteran's duodenal peptic ulcer is not shown to be moderately severe, manifested by anemia and weight loss, or by recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for hiatal hernia with GERD and duodenal peptic ulcer disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.114, Diagnostic Codes 7346-7305 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) 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 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). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In a June 2005 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. A March 2006 letter provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was not received prior to the initial rating decision. Despite the inadequate timing of this notice, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO cured any VCAA notice deficiency by issuing the corrective notice in a March 2006 letter. The RO readjudicated the case in October 2008 and January 2011 supplemental statements of the case (SSOC). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a statement of the case (SOC) or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Id. There is no indication that any notice deficiency reasonably affects the outcome of this case. The Veteran's service treatment records, VA treatment records, private treatment records, and a VA examination report have been associated with the claims file. The Board notes specifically that the Veteran was afforded a VA examination in July 2005. 38 C.F.R. § 3.159(c)(4) (2010). 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). As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims folder and medical records contained therein; contains a description of the history of the disability at issue; documents and considers the Veteran's complaints and symptoms; and fully addresses the relevant rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2010). The Board remanded the case to the RO in July 2008 and in June 2009 so that the RO could obtain a July 2005 upper GI series which was ordered at the time of a July 2005 VA examination. The RO made several requests for records related to a July 2005 upper GI series. All available VA records dated in 2005 have been associated with the claims file. From a review of the available records, it appears that although a GI series was requested in July 2005, it was not completed by VA. In a November 2010 letter, VA notified the Veteran that it appeared that the July 2005 upper GI series was performed at an outside institution, and requested that the Veteran submit any such records or complete an authorization and consent form so that VA could request those records. In December 2010, the Veteran returned the authorization and consent form, indicating that he had not had any treatment outside of VA. In light of the foregoing, the Board finds that the RO substantially complied with the terms of the July 2008 and in June 2009 remand order. See Stegall v. West, 11 Vet. App. 268, 270 (1998). As noted above, all VA treatment records dated in 2005 have been associated with the claims file; therefore, the Board finds that it is reasonably certain that these records are not in VA's possession, and further efforts to obtain these records would be futile. See 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c)(2) (2010). The Board further finds that the evidence provided in the July 2005 VA examination report, considered along with the Veteran's current VA treatment records and a January 2008 private upper endoscopy, is sufficient for rating purposes and a remand for a GI series is unnecessary in this case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). B. Law and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered whether staged ratings are for consideration; however, the evidence of record does not establish distinct time periods where the Veteran's service-connected disability results in symptoms that would warrant different ratings. A July 2005 VA examination included a review of the Veteran's medical record and his medical history was discussed. A GI series in 1991 showed duodenal ulcer disease and reflux esophagitis. In 1997, a repeat study revealed a sliding hiatal hernia, gastroesophageal reflux, and a deformed duodenal bulb. The Veteran had present complaints of epigastric pain, acid reflux, and heartburn as he continued to use sulindac as treatment for his muscle hernia of the left wrist. Vomiting was rare. Hematemesis or melena was rare though the Veteran had an occasional stool that was guaiac positive. The Veteran had no hypoglycemic reactions or circulatory disturbances after meals. He had no diarrhea or constipation. He had no colicky pain. The Veteran had a history of duodenal ulcer with no significant weight change or anemia. He had epigastric tenderness with no rebounds. The VA examiner noted that GI series had been requested in July 2005. However, as the Board has discussed above, it appears that the GI series was not completed by VA. The Veteran was diagnosed with a hiatal hernia with GERD and peptic ulcer disease of the duodenum. His diagnosis was found to be related to NSAID therapy used to treat his service-connected left wrist muscle hernia lesion. A January 2008 private upper endoscopy report revealed a small hiatal hernia, antral and body erythema and friability, and mild duodenitis. VA primary care evaluations dated from 2005 to 2009 show that the Veteran was negative for gastrointestinal symptoms to include dysphagia, abdominal pain, nausea, vomiting, hematemesis, diarrhea, constipation, melena, or hematochezia. A computerized problem list showed that the Veteran had a peptic ulcer. In November 2007, the Veteran had a complaint relating to epigastric pain radiating to the back area since two months prior, exacerbated with an empty stomach and relieved with omeprazole. It was noted that a January 2008 endoscopy revealed a small hiatal hernia, and mild duodenitis. A June 2009 note shows that the Veteran's GERD was stable on medication. No other treatment or complaints related to the Veteran's gastrointestinal disability were indicated by the medical evidence of record, and the Veteran indicated in a December 2010 statement that he had no additional treatment outside of VA. The Schedule of Ratings of the Digestive System at 38 C.F.R. § 4.114 provides that 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 (2010). 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. The Veteran is currently in receipt of a 20 percent evaluation under Diagnostic Code 7346-7305. 38 C.F.R. § 4.114 (2010); see also 38 C.F.R. § 4.27 (2010) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 7305 assigns a 20 percent evaluation for a duodenal ulcer that is moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. 38 C.F.R. § 4.114, Diagnostic Code 7305 (2010). A 40 percent evaluation is assigned for a duodenal ulcer that is moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. Id. A maximum 60 percent evaluation is assigned for a duodenal ulcer that is severe; 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. Id. Diagnostic Code 7346 assigns a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2010). A 30 percent rating for a hiatal hernia is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned 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. Id. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2010). The Board finds that an evaluation in excess of the current 20 percent rating is not warranted under Diagnostic Code 7305. The Veteran has currently diagnosed peptic ulcer disease of the duodenum. However, the Veteran's duodenal ulcer is not shown to be moderately severe such that a higher 40 percent evaluation is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7305 (2010). A January 2008 endoscopy revealed mild duodenitis. The Veteran's duodenal ulcer does not result in impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year as described for a 40 percent evaluation under Diagnostic Code 7305. Id. A July 2005 VA examination report shows that the Veteran had no evidence of anemia or weight loss during examination. VA treatment records similarly do not reflect any anemia or weight loss, or incapacitating episodes secondary to the Veteran's gastrointestinal disability. Therefore, the Board finds that a higher 40 percent evaluation is not warranted for a hiatal hernia with GERD and duodenal peptic ulcer disease under Diagnostic Code 7305. The Board finds that a higher evaluation is not warranted under Diagnostic Code 7346. VA treatment records show that the Veteran's hiatal hernia with GERD is stable with use of medication. The Veteran reported having epigastric distress, acid reflux, and heartburn at the time of his July 2005 VA examination. VA primary care evaluations dated from 2005 to 2009 show that the Veteran did not have any symptoms related to dysphagia, abdominal pain, nausea, vomiting, hematemesis, or melena. The evidence of record shows that the Veteran's hiatal hernia with GERD results in recurrent epigastric distress; however, the Veteran's symptoms are shown to be well-controlled with medication. The Veteran's hiatal hernia with GERD is not shown by medical evidence to be manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health as required for a higher 30 evaluation under Diagnostic Code 7326. See 38 C.F.R. § 4.114, Diagnostic Code 7346 (2010). There is no indication from the record that the Veteran's gastrointestinal disability is accompanied by substernal, arm, or shoulder pain, or that it results in impairment of health. In light of the foregoing, the Board finds that an evaluation in excess of 20 percent is not warranted for a hiatal hernia with GERD. Consideration of Lay Evidence and Extraschedular Consideration In reaching the above conclusions, with respect to the Veteran's increased rating claim, the Board has not overlooked the Veteran's statements with regard to the severity of his gastrointestinal disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain and weakness; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Any lay evidence in this case was provided during the Veteran's VA examination and in VA treatment records. He is competent to provide statements regarding his current symptomatology, and the Board finds that the Veteran's statements are credible. The Board has considered the Veteran's reports along with findings from the Veteran's VA examination and VA treatment reports. The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, has not necessitated frequent periods of hospitalization, and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. As shown in the discussion above, the Veteran's symptomatology due to his hiatal hernia with GERD and duodenal peptic ulcer disease is adequately addressed by the available scheduler criteria. Thus, the Board finds that the requirements for referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). C. Conclusion The preponderance of the evidence is against finding that the Veteran's hiatal hernia with GERD and duodenal peptic ulcer disease warrants a higher rating evaluation. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER An increased rating for a hiatal hernia with GERD and duodenal peptic ulcer disease, in excess of 20 percent, is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs