Citation Nr: 1137272 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 00-08 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a rating in excess of 40 percent for gastroesophageal reflux disease (GERD) with Barrett's esophagus (formerly duodenal ulcer). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1967, and from September 1968 to February 1971. This matter originates from a May 2002 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In this decision, the RO continued a 20 percent rating for the then duodenal ulcer (now GERD). The Veteran provided testimony regarding this claim at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) in March 2009. He also previously provided testimony at a November 2001 hearing before a different VLJ regarding his claims of service connection for PTSD and hypertension. Transcripts of both hearings have been associated with the Veteran's VA claims folder. Service connection was established for the Veteran's PTSD by an August 2008 rating decision. In view of the foregoing, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). (The issue of entitlement to service connection for hypertension will be the subject of a separate decision by the Board). This matter was previously before the Board in June 2009 Board at which time the Board increased the Veteran's evaluation for GERD with Barrett's esophagus to 40 percent disabling, but no higher. In a July 2009 rating decision, the RO effectuated the increased rating assigned by the Board, effective May 30, 2001. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) that portion of the Board's decision that denied a rating greater than 40 percent for GERD with Barrett's esophagus. Pursuant to an April 2010 Joint Motion to Remand filed by the parties and an April 2010 CAVC Order, the Board's June 2009 decision was vacated to the extent that it denied the claim of entitlement to a rating higher than 40 percent for GERD with Barrett's esophagus and was remanded back to the Board. The Board, in turn, in June 2010, remanded the matter for additional development. The requested development included making efforts to obtain pertinent VA medical records from VA medical centers (VAMCs) in Jamaica Plain and West Roxbury, Massachusetts. Such records were requested and received by the RO in July 2010 and have been incorporated into the claims file. The requested development also required that consideration be given to the pertinent lay evidence in light of holdings in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). This has been accomplished. Accordingly, there has been substantial compliance with the Board's June 2010 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The evidence of record reveals that the Veteran's GERD with Barrett's esophagus is characterized by mild dysphagia with solid food, occasional regurgitation, intermittent epigastric pain, some reports of diarrhea, occasional heartburn, nausea and vomiting, and circulatory disturbance after meals at times, which are productive of moderate impairment of health; but there is no evidence of hypoglycemic symptoms, malnutrition, weight loss, hematemesis or melena, anemia or circulatory disturbance after meals to a degree indicating severe impairment of health. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for service-connected GERD with Barrett's esophagus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7308, 7346 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board must acknowledge that it does not appear the Veteran received such pre-adjudication notice. However, the United States Court of Appeals for the Federal Circuit has indicated that this defect can be remedied by a fully compliant VCAA notice issued prior to a readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran was sent VCAA-compliant notification by a letter dated in October 2007 followed by readjudication of the appellate claim via a May 2008 supplemental statement of the case (SSOC). Further notification was sent to the Veteran via an August 2008 letter. The claim was most recently readjudicated via a July 2011 SSOC. In short, the Board finds no prejudice to the Veteran as he has actively participated in the processing of his case, and the statements and hearing testimony submitted in support of this claim have indicated familiarity with the requirements for the benefit sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate this claim, what information and evidence he must submit, and what information and evidence will be obtained by VA. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Further, both letters included information regarding disability rating(s) and effective date(s) as mandated by the Court's holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate this claim, including requesting information from the appellant regarding pertinent medical treatment he may have received, and affording him VA examinations during the appeal period. In regard to VA examinations, the Veteran was afforded pertinent VA examinations in March 2002, November 2007 and June 2009. The examiners provided sufficient detail for the Board to make a decision in this appeal and their reports are deemed adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The appellant was also provided with the opportunity to attend a Travel Board Hearing as he requested, which he attended in March 2009. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in his claim of entitlement to a rating in excess of 40 percent for GERD with Barrett's esophagus and that adjudication of this claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts At a VA examination in March 2002, the Veteran reported a recent increase in reflux symptoms. He reported dysphagia with solids, but not liquids, and pyrosis. He also said he slept with his head elevated and that his reflux occurred mostly at night. He noted that his symptoms were improved by rabeprazole. He further reported nausea and vomiting approximately two times a month lasting several hours and he said he avoided certain foods, including tomatoes, sauces and spicy foods. He reported improvement due to diet, elevating his head at night and rabeprazole, but said he experienced "breakthrough episodes" one to two times a month. The report shows that he had no hematemesis or melena. The examiner reported that the Veteran presented with a normal weight of approximately 210 pounds, and he provided an impression that included history of duodenal ulcer, on treatment, and GERD, chronic reflux esopaghitis. Yearly VA outpatient gastroenterology records on file show that for the most part the Veteran's GERD was well controlled by diet and medication. They include an April 2002 note indicating that weight reduction was recommended. This note also indicates that the Veteran experienced a mild sticking sensation in his cheek approximately once a week with solid foods and had mild dysphagia to solid foods for years. An August 2002 note states that an esophagogastroduodenoscopy (EGD) had been performed revealing grade I esophagitis. According to a January 2003 note, the Veteran had been on rabeprzole for two months with poor relief of symptoms, but he reported that lansoprazole had been much more effective. He denied symptoms such as dysphagia and melena. He was noted to be 212 pounds and obese and was reportedly trying to lose weight. In addition, this record notes that the Veteran continued to have a rare sticking sensation in his neck once a month and had mild midline abdominal discomfort associated with a ventral tear. A January 2006 record notes that an esophageal biopsy confirmed Barrett's mucosa and no dysplasia. H. Pylori was negative. The Veteran was noted at this time to have occasional gas and diarrhea. At a VA examination in November 2007, the Veteran reported dysphagia that was characterized as burning across his chest for solids and liquids on a monthly basis. He also reported epigastric pain that was intermittent, and regurgitation of stomach contents several times a week. He said the condition interfered with his sleep and he experienced nausea several times a week. Additional symptoms included vomiting less than weekly, esophageal distress with pain several times a week, especially at night, and heartburn several times a week. He denied hematemesis, melena, or esophageal dilation. The examiner reported that there was no significant weight loss or malnutrition and added that the Veteran had a weight gain that was 10 percent compared to baseline. The examiner also noted that the condition had significant effects on the Veteran's occupation due to decreased concentration, and that he had been assigned different duties as a result. In June 2009, the Veteran underwent another VA examination at which time the examiner noted that the Veteran's symptoms were largely unchanged from his last examination. Noted symptoms included nausea less than weekly, vomiting less than weekly, belching and constipation, and a gnawing or burning pain less than monthly, that occurred 0 to three hours after eating and lasted one to two hours. This was noted to happen most when the Veteran forgot to take his medication. The Veteran reported that he obtained relief from taking extra medication, i.e., omeprazole. Symptoms also included episodes of trace blood in feces with burning sensation and hemorrhoids. The Veteran's recorded weight was 225 pounds and he was found to have a soft abdomen with normal bowel sounds. The examiner reported that the Veteran's GERD with Barrett's esophagus had significant effects on his occupation in that there was abdominal discomfort when GERD symptoms were poorly controlled with medications which was quite distracting and painful at times. The examiner further reported that the Veteran must avoid certain foods and avoid recumbent positions as this may exacerbate his symptoms. He further indicated that the Veteran had been assigned different duties (at work). The Veteran testified at the Board hearing in March 2009 that his acid reflux was "50 to 100 times worse" than heartburn. He further testified that the disability had not been as active as it has been in the past, but that it was still active and gave him "a lot of stress and pain". He said that the medication helped to a degree, and he had to sleep upright at night with extra pillows to prevent the reflux. He said he had to avoid eating spicy foods and nuts and sometimes had problems with vomiting and bowel movements, but not diarrhea. He explained that a lot of times he had difficulty swallowing food because the food "gets caught in the hiatal hernia", and he had to drink a lot of liquids to dislodge it. When asked if he had problems with eating such as circulatory problems, sweating or being light headed, he said there have been times, but not regular episodes. II. Law and Discussion Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). See also, Fenderson v. West, 12 Vet. App. 119 (1999). Disabilities involving the digestive system are evaluated under the regulatory criteria found at 38 C.F.R. §§ 4.110-4.114 (2010). 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 mainly 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 § 4.14. 38 C.F.R. § 4.113. Under 38 C.F.R. § 4.114, Diagnostic Code 7308 for postgastrectomy syndrome, a disability rating of 60 percent is warranted when severe; associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. A disability rating of 40 percent is warranted when moderate; less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. 38 C.F.R. § 4.114, Diagnostic Code 7308. Under 38 C.F.R. § 4.114, Diagnostic Code 7346 for hiatal hernia, a 60 percent rating is assigned 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 evaluation is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. See 38 C.F.R. § 4.114, Code 7346. Weight loss is a consideration in evaluating digestive system disorders. 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). When an unlisted condition is encountered, it will be permissible to rate the condition 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. In the instant case, based on the evidence of record, the Veteran's GERD with Barrett's esophagus is shown to be manifested by mild dysphagia with solid food, regurgitation, intermittent epigastric pain, heartburn and occasional nausea and vomiting with some reports of diarrhea, and circulatory disturbance after meals at times. These symptoms are noted in the medical evidence as well as were reported by the Veteran at the March 2009 Board hearing. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As a starting point, there is no specific diagnostic code for GERD. The Veteran's disability is presently rated under Code 7308 for postgastrectomy syndromes. The Board finds that the evidence does not support the next higher rating under this code, to 60 percent. In this regard, the Veteran has not been shown to have hypoglycemic symptoms, or weight loss with malnutrition and anemia on examination. Rather, the Veteran denied hematemesis, melena and esophageal dilation at the March 2002 and November 2007 VA examinations, and he also denied experiencing melena at a VA outpatient visit in January 2003. Moreover, the November 2007 examiner reported that the Veteran had no significant weight loss or malnutrition. This examiner went on to note that the Veteran had a weight gain that was 10 percent compared to baseline. At a subsequent VA examination in June 2009, the Veteran was noted to weigh 225 pounds. With respect to circulatory disturbances after eating and sweating, the Veteran testified that there have been times of these symptoms, but not regular episodes. Thus, the frequency of such symptoms is more indicative of the criteria for moderate impairment than severe. Similarly, in regard to diarrhea, the Veteran reported at a January 2006 VA outpatient visit that he experienced occasional diarrhea (and gas), but he denied having diarrhea at the June 2009 VA examination. Again, the frequency of such symptoms more closely approximates moderate rather than severe impairment. For these reasons, the weight of evidence does not support the criteria for an increased, 60 percent, rating under Code 7308. Similarly, a 60 percent rating would also not be warranted under Code 7346 as indicated by the evidence above. That is, the Veteran has not been found to material weight loss, hematemesis or melena with moderate anemia, nor does he manifest other symptom combinations that are productive of severe impairment of health. The Board has also considered the applicability of Code 7203, used to evaluate stricture of the esophagus, in light of the Veteran's Barrett's esophagus. However as there is no indication that he has stricture of the esophagus, these criteria are not applicable. 38 C.F.R. § 4.114, Diagnostic Code 7203 (2010). Based on the foregoing, the Board finds that the weight of evidence goes against the Veteran's claim of entitlement to a rating higher than 40 percent for GERD with Barrett's esophagus. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to the issue of whether a staged rating is appropriate, the evidence of record shows that the Veteran's manifestations of GERD with Barrett's esophagus have not fluctuated materially during the course of this appeal. In fact, the June 2009 VA examiner remarked that the Veteran's symptoms were largely unchanged from his last examination (in November 2007). As such, a staged rating is not warranted. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected GERD with Barrett's esophagus is inadequate. A comparison between the level of severity and symptomatology of this disability with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Although both the November 2007 and June 2009 VA examiners remarked that the Veteran's GERD with Barrett's esophagus significantly affects his occupation by causing abdominal discomfort that is distracting and painful at times and causes reduced concentration, the evidence does not indicate that the disability has caused marked interference with employment that is not already contemplated by the rating criteria. Moreover, both the November 2007 and June 2009 examination reports state that the Veteran had been assigned different work duties due to his gastrointestinal symptomatology. Furthermore, the medical record does not show that this disability has necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). ORDER Entitlement to a rating in excess of 40 percent for GERD with Barrett's esophagus (formerly duodenal ulcer) is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs