Citation Nr: 1146727 Decision Date: 12/22/11 Archive Date: 12/29/11 DOCKET NO. 08-35 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for peptic ulcer disease with reflux disease and hiatal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from November 1979 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT The Veteran's peptic ulcer disease with reflux disease and hiatal hernia is characterized by epigastric tenderness, pain, diarrhea, hematemesis, and melena. CONCLUSION OF LAW The criteria for an initial evaluation of 20 percent, and no greater, for peptic ulcer disease with reflux disease and hiatal hernia have been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2011). 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In March 2007 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the June 2007 rating decision, November 2008 SOC, and February 2009 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the March 2007 letter which VA sent to the Veteran. The Board finds that the January 2009 VA examination was sufficient because the examiner supported her conclusions with analysis that can be weighed against the other evidence of record. Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Applicable Law, Regulations, and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. Part 4 (2011). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against an adverse decision based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Also, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7304 provides ratings for gastric ulcer. Mild ulcer, with recurring symptoms once or twice yearly, is rated 10 percent disabling. Moderate ulcer, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations, is rated 20 percent disabling. Moderately severe ulcer, with 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, is rated 40 percent disabling. Severe ulcer, 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, is rated 60 percent disabling. 38 C.F.R. § 4.114 (2011). Diagnostic code 7346 provides ratings for hiatal hernia. Hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated 10 percent disabling. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is rated 30 percent disabling. Hiatal hernia 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, is rated 60 percent disabling. 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 rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Reviewing the evidence of record, private treatment records from February 2007 indicate that the Veteran had intermittent mid-abdominal discomfort and that he took Protonix. His past medical history was noted to include gastroesophageal reflux disease (GERD), which was stable, and peptic ulcer disease. The Veteran had a VA examination in July 2008. It was noted that he had nausea in the mornings and occasionally in the evenings. Epigastric cramps were relieved by food, and there had not been any episodes of hematemesis or melena. He had GERD almost every night and took Aciphex daily with no side effects. There had been no periods of incapacitation due to stomach or duodenal disease and the Veteran had not been hospitalized related to peptic ulcer disease since 2002. The peptic ulcer disease had no effect on the Veteran's daily activities, and he was unemployed so the effect on occupational functioning was not discussed. The Veteran had epigastric pain, and a benign, pancreatic islet cell tumor was removed in 2002. The Veteran's weight had been stable for the past year, there were no signs of anemia, and there was no tenderness. The last complete blood count from private treatment had been normal. The examiner diagnosed the Veteran with peptic ulcer disease, healed, with GERD and hiatal hernia. The Veteran wrote on his November 2008 VA Form 9 that his pain was not mild and that it occurred every day. He had periodic vomiting and blood in his vomit and stool. The Veteran could not sleep because of GERD and his weight fluctuated within an 11 pound range. He took iron pills on a daily basis for anemia. The Veteran also wrote that he disagreed with the VA examination because the examiner only asked him questions for 15 to 20 minutes and did not actually examine him. In January 2009 the Veteran had another VA examination with a different examiner at which he said that he had not had treatment for his peptic ulcer disease symptoms since 2007. The Veteran had stopped taking Aciphex because of money and had been taking Pepto-Bismol, Mylanta and Tums, which did not provide any relief. Symptoms included pain in the epigastric region, diarrhea, nausea and intermittent vomiting with some blood. He had a history of peptic ulcer disease that healed in 2005 but felt that the problems had reoccurred. At night he awoke with a feeling that he could not breathe due to the reflux coming into his mouth. He also had a history of pylori that was treated. The course since onset was progressively worse. There were periods of incapacitation due to stomach or duodenal disease four or more times a year for a duration of three days. In addition, there were episodes of abdominal colic, nausea or vomiting, and abdominal distention. There was gnawing or burning pain on a daily basis before eating, one to several hours after eating, and at night. The pain lasted for an hour, was in the epigastric region, and was relieved by nothing. Post-meal symptoms included anorexia, belching, bloating, confusion, diarrhea, dizziness, fainting, nausea, pain, palpitations, sweating, vomiting, weakness, and weight loss. The symptoms occurred on a daily basis. Blood in the vomit or stools (hematemesis or melena) occurred three times per week and was moderate to severe. The Veteran had nausea several times a day and vomited on a weekly basis. He had diarrhea several times a week but less than daily. The examiner noted that the Veteran's weight fluctuated within a seven to eight pound range, and there were no signs of anemia. The abdomen was tender in the epigastric region with active bowel sounds. There were no effects on the Veteran's daily activities, and he was not working because he had been laid off. The examiner noted that even though the Veteran's hemoglobin and hematocrit were slightly lower than normal, it was not significant to indicate a loss of volume. Reviewing the evidence of record, the Board finds that the Veteran is entitled to an increased evaluation of 20 percent because he has continuous moderate symptoms. While the VA examiners indicated that the symptoms did not have any effect on the Veteran's daily activities, the January 2009 examiner found on examination that the Veteran's abdomen was tender. Furthermore, the Veteran had pain on a daily basis, moderate to severe hematemesis or melena three times a week, and he had nausea several times a day and vomited on a weekly basis. In addition, the Veteran had difficulty sleeping due to GERD. See 38 C.F.R. § 4.114, DC 7304 The Veteran does not qualify for a 40 percent evaluation, the next highest available after 20 percent, under Diagnostic Code 7304. The January 2009 VA examiner found that the Veteran does not have anemia and his weight fluctuated within a seven to eight pound range. The Veteran's statement on his VA Form 9 indicates that his weight fluctuated within an 11 pound range. Therefore the record does not show anemia and weight loss. The record also does not show that the Veteran had incapacitating episodes averaging 10 or more days in duration four or more times a year. By the Veteran's own report at the January 2009 examination there were periods of incapacitation due to stomach or duodenal disease four or more times a year for a duration of three days. Therefore, the Veteran does not meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.114, DC 7304. Furthermore, the Veteran cannot qualify for a 30 percent evaluation under Diagnostic Code 7346, hiatal hernia, because the record does not show that he has substernal or arm or shoulder pain and that he has considerable impairment of health. See 38 C.F.R. § 4.114, DC 7346. Given the Veteran's complaints associated with employment, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The record reflects that the Veteran has not required frequent hospitalization for the disability, and that the manifestations of the disability are not in excess of those contemplated by the assigned rating. Further, although the Veteran experiences occupational impairment, there is no indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. The Court has held that, "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, 115 (2008). Therefore, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Finally, in light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected peptic ulcer disease with reflux disease and hiatal hernia, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER Entitlement to an initial evaluation of 20 percent is granted for peptic ulcer disease, subject to the laws and regulations governing awards of monetary benefits. ____________________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs