Citation Nr: 1223391 Decision Date: 07/06/12 Archive Date: 07/13/12 DOCKET NO. 09-11 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable evaluation for gastroesophageal reflux disease ("GERD") with gastritis (claimed as a hiatal hernia). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from April 1982 to July 2006. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Los Angeles, California, which granted the aforementioned service connection claim with a noncompensable evaluation, effective August 1, 2006. FINDING OF FACT Throughout the period on appeal, the Veteran's service-connected GERD with gastritis has been manifested by a small hiatal hernia with persistently recurrent epigastric distress, dysphagia, pyrosis and regurgitation. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for a disability rating of 10 percent, and no more, for GERD with gastritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, service connection for GERD with gastritis had already been established, and the current appeal arose from a claim for an increased rating. By means of a September 2006 letter, the Veteran was informed of what he should do and what VA would do to assist him in obtaining evidence, including the specific types of evidence, both lay and medical, that could be submitted in support of a service connection claim. However, where, as here, service connection has been granted and an initial rating has been assigned, the claim for service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. Accordingly, as the notice provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case was satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). B.) Duty to Assist The Board concludes that the duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as an October 2006 VA/QTC examination report. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the examination report shows that the VA examiner reviewed the Veteran's pertinent reports of record, including his service and post-service treatment records, performed a comprehensive examination, elicited from the Veteran his history of symptom, and provided clinical findings detailing the examination results. For these reasons, the Board concludes that the examination report is adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. II. Analysis. The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Separate Diagnostic Codes ("DCs") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2011). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2011). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2011). 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. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2011). The provisions of 38 C.F.R. § 4.113 state that 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 instructions 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. Ratings under Diagnostic Codes 7301 through 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114 (2011). The Board notes that although it is unclear whether the RO awarded the Veteran's current non-compensable disability rating under the criteria of DC 7306 or 7307, the Board will consider the criteria of both, as well as other diagnostic codes under 38 C.F.R. § 4.114, and determine a rating under the criteria that reflects the predominant disability picture and that is most favorable to the Veteran. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case," and the choice of diagnostic code should be upheld if it is supported by explanation and evidence). Accordingly, any error in not clearly advising the Veteran under which of these codes he was awarded a non-compensable rating is harmless. Under DC 7306, a 10 percent rating is warranted for a mild marginal (gastrojejunal) ulcer with brief episodes of recurring symptoms once or twice yearly. A 20 percent evaluation requires demonstrated evidence of a moderate marginal ulcer with episodes of recurring symptoms several times a year. These symptoms include vomiting, recurring melena or hematemesis, and weight loss. A 40 percent rating is for assignment when the ulcer is moderately severe, with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, and with mild and transient episodes of vomiting or melena. The next higher rating of 60 percent is assigned when the ulcer is severe, and the same as pronounced with less pronounced and less continuous symptoms with definite impairment of health. A 100 percent schedular rating is assigned for ulcer disease which is pronounced, with periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or a hematemesis, and weight loss, so as to render the individual totally incapacitated. 38 C.F.R. § 4.114, DC 7306 (2011). Under DC 7307, chronic hypertrophic gastritis, with small nodular lesions and symptoms, is rated 10 percent disabling. Chronic hypertrophic gastritis, with multiple small eroded or ulcerated areas and symptoms, is rated 30 percent disabling. Chronic hypertrophic gastritis, with severe hemorrhages or large ulcerated or eroded areas, is rated 60 percent disabling. Atrophic gastritis, which is a complication of a number of diseases, including pernicious anemia, is to be rated on the underlying condition. 38 C.F.R. § 4.114, DC 7307 (2011). Under DC 7346, hiatal hernia, symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health warrant a 60 percent rating. Persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health warrant a 30 percent rating. Two or more of the symptoms for the 30 percent evaluation of less severity warrant a 10 percent rating. In every instance 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 (2011). The Board observes that the words "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2011). In August 2006, shortly after his separation from service, the Veteran applied for service connection for several disorders, one of which was a hiatal hernia condition; there is no indication that he applied for service connection for an ulcer. In October 2006, he was afforded a VA/QTC general medical examination during which he reported that he had suffered from a hiatal hernia for over 13 years and that the condition had progressed to almost daily epigastric pain or heartburn. He said he experienced this up to three times per week for an hour, and up to approximately 75 times per year. It was noted that he had taken various over-the-counter antacids for pain relief and was also taking prescription Lipitor daily. An abdominal examination was essentially normal without organ enlargement, local pain or tenderness, or peritoneal findings. Although a chest x-ray revealed findings within normal limits, no other diagnostic tests, such as an upper endoscopy, were performed. The examiner diagnosed the Veteran with GERD with subjective factors of a history of pain in the epigastrium, and no objective factors. The examiner noted that the condition did not produce significant anemia or malnutrition. Thereafter, the Veteran was awarded service connection under DC 7306-7307 with a non-compensable rating, effective August 1, 2006. Treatment records submitted by the Veteran following the VA/QTC examination show that in December 2006, he was seen at the Port Hueneme Naval Hospital with continuing complaints of chest pain and regurgitation. As he had not yet filled a prescription for Prevacid given to him during a previous visit, he was advised to do so and return for an endoscopy. The diagnosis was GERD with chest discomfort. Later that month, he underwent an esophagogastroduodenoscopy (EGD), which revealed GERD, mild diffuse esophageal spasm, and a tiny hiatus hernia without evidence of inflammation in the esophagus. However, a subsequent December 2006 gastric biopsy revealed gastric mucosa displaying mild, chronic inflammation. During a follow-up visit in January 2007, it was noted that the Veteran was doing better on Prevacid and that an endoscopy was negative with the exception of a small hiatal hernia. The diagnosis was reflux. Subsequent treatment reports show that in November 2007, the Veteran was seen again at Port Hueneme Naval Hospital with complaints of worsening reflux. Again, he was diagnosed with GERD and was placed on the medication Prilosec. In a statement received in April 2009, along with his appeal to the Board, the Veteran reported that he continued to experience severe GERD resulting in intense, painful episodes of gastric distress, which occurred two to three times per month, lasting 20-30 minutes. He further noted that he experienced difficulty swallowing any food or drink with pain so severe that he had to stop eating and stand upright until the symptoms subsided. He added that he also experienced belching with slight regurgitation, which slowly relieved the pressure and pain. As previously noted, in Butts v. Brown, the Court held that the choice of diagnostic code should be upheld if it is supported by explanation and evidence. In addition, if two disability evaluations are potentially applicable, the higher evaluation will be assigned to 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). Based on a thorough review of the evidence of record, the Board concludes that a disability evaluation of 10 percent is warranted for the Veteran's service-connected GERD with gastritis under DC 7346. This rating is based not only on objective medical evidence of the presence of a small hiatal hernia, but also on the December 2006 gastric biopsy, which revealed gastric mucosa showing mild, chronic inflammation. In addition to the medical evidence of record, the Board has also considered the Veteran's personal statements regarding the symptoms associated with his condition. In this respect, the Court has held that veterans, as lay persons, are competent to describe what they personally experience with their senses. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that symptoms such as dysphagia, pyrosis and regurgitation are symptoms that the Veteran, as a lay person, is competent to describe, his statements carry some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Moreover, as the Board finds no reason to doubt the Veteran's credibility in this case, it concludes that a 10 percent rating is warranted under DC 7346. With regard to assigning a higher disability rating under that diagnostic code, the Board notes that, although the evidence of record (both lay and medical) demonstrate complaints/findings of dysphagia, pyrosis and regurgitation associated with the Veteran's GERD with gastritis, there is no evidence that he was ever found to have substernal, arm or shoulder pain productive of considerable impairment of health. Although he has repeatedly complained of chest discomfort or pain, the treatment reports throughout the course of the appeal appear to indicate that the Veteran's symptoms actually improved. In this regard, the Board notes that, during the VA examination, he complained of experiencing symptoms two to three times per week, each lasting about an hour. However, by April 2009, he reported that the symptoms occurred only two to three times per month, and lasted only 20-30 minutes. Accordingly, a higher disability rating is not warranted under DC 7346. The Board has also considered whether a higher disability rating is warranted for the Veteran's disorder under another diagnostic code. See Butts v. Brown, supra. However, as discussed above, because there is no evidence that he has ever been diagnosed with an ulcer during the course of this appeal, a higher rating under DC 7306 is not warranted. Moreover, because he has not been found to have multiple small eroded or ulcerated areas (identified by gastroscope), a higher disability rating under DC 7307 is not warranted. In addition, as there is no medical evidence that he has ever been diagnosed with any of the other digestive system diseases under 38 C.F.R. § 4.114 during the course of this appeal, a higher disability rating is not warranted under any other diagnostic code listed under the "Diseases of the Digestive System." 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 threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board concludes that the Veteran's service-connected digestive disability was not so unusual or exceptional in nature as to render the assigned schedular ratings inadequate. The Veteran has submitted no evidence showing that his condition markedly interfered with his employment status beyond that contemplated by the assigned evaluations, and there is also no indication that it necessitated frequent, or indeed any, periods of hospitalization. The symptomatology shown during this period of the appeal has been fully contemplated by the diagnostic code considered above and is consistent with the assigned evaluations. As such, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. In summary, for the reasons and bases set forth above, the Board finds that an evaluation of 10 percent, and no more, for GERD with gastritis, is warranted. ORDER Entitlement to an evaluation of 10 percent, and no more, for GERD with gastritis is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ M. W. GREENSTREET Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs