Citation Nr: 1223949 Decision Date: 07/11/12 Archive Date: 07/18/12 DOCKET NO. 09-20 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability rating (evaluation) for eosinophilic esophagitis with stricture, dysmotility, and esophageal ring. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1987 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in pertinent part, granted service connection for eosinophilic esophagitis with stricture, dysmotility, and esophageal ring and assigned a noncompensable (0 percent) disability rating, effective October 1, 2008. In May 2012, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in San Antonio, Texas. A copy of the transcript is of record. The Veteran submitted a waiver of initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304(c) (2011). FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran is qualified, as board-certified in internal medicine, pulmonary disease, and critical care medicine, to offer a medical opinion regarding his service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring. 3. For the entire initial rating period, the service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring has more nearly approximated moderate stricture of the esophagus. 4. For the entire initial rating period, the service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring has not been manifested by severe stricture of the esophagus, permitting liquids only. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial compensable disability rating of 30 percent, but no higher, for the eosinophilic esophagitis with stricture, dysmotility, and esophageal ring have been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.21, 4.114, Diagnostic Code 7203 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of; and (5) effective date of the disability. 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 was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, a March 2008 letter included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. The Board finds that the VCAA notice requirements have been satisfied by the March 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The claim on appeal arises from the Veteran's disagreement with the initial noncompensable disability rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has interpreted, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003(in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). See also 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient procedure reports dated February 2012 and April 2012, VA outpatient treatment statements dated May 2009 and February 2012, May 2012 Board hearing transcript, and May 2008 VA examination report through QTC Medical Services (QTC). The examiner recorded pertinent examination findings and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative with regard to the nature and severity of the service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board further notes that, at the May 2012 Board hearing, the Veteran's representative reported the Veteran has exhausted all efforts to obtain new medical evidence that would support the claim. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Rating Eosinophilic Esophagitis In the November 2008 notice of disagreement, the Veteran asserted that his service-connected disability is more than a simple mild esophageal stricture. He explained that multiple evaluations have demonstrated fixed permanent multiple esophageal rings with a decrease in esophageal diameter and evidence of esophageal dysmotility. In the May 2009 substantive appeal, via a VA Form 9, and October 2011 report of contact, via a VA Form 21-0820, the Veteran asserted the service-connected disability is more severe than the initially assigned noncompensable evaluation, which does not take into account the medical findings of multiple esophageal rings, chronic dysmotility, and chronic inflammatory nature of eosinophilic esophagitis. In October 2011, the Veteran also reported he is a physician, so does not always go to another doctor when he can treat himself, and he has problems with swallowing solid foods at times and must chew his foods thoroughly and carefully before swallowing to avoid the risk of choking. In March 2012, via a VA Form 646, the Veteran's representative contended the Veteran has submitted significant medical evidence indicating symptoms meeting the requirements for a compensable evaluation, and that the level of symptoms would be best overall described as moderate. Pursuant to the rating criteria for the digestive system, the Veteran's eosinophilic esophagitis with stricture, dysmotility, and esophageal ring, has been initially rated as noncompensable (0 percent) under Diagnostic Code 7203. Diagnostic Code 7203, which provides ratings for stricture of the esophagus, provides a 30 percent rating when moderate, 50 percent rating when severe, permitting liquids only, and an 80 percent rating when permitting passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114. After a full review of the record, the Board finds that, for the entire initial rating period, the service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring has more nearly approximated moderate stricture of the esophagus, thus meeting the criteria for an initial compensable disability rating of 30 percent under Diagnostic Code 7203. See 38 C.F.R. § 4.114. The evidence of record indicates that, in a May 2009 VA outpatient treatment statement, Dr. H. A. opined that it is most probable that the Veteran's multiple esophageal strictures resulting in periodic food impactions are the result of his eosinophilic esophagitis, and the chronic inflammatory nature of eosinophilic esophagitis will result in lifelong dysmotility and dysphagia. Dr. H. A. also indicated that the Veteran's symptoms of dysphagia have progressively worsened over the last six months and given the complex nature of the condition, treatment is directed not just at acid suppression but also with food avoidance and periodic steroid therapy and esophageal dilations on an as needed basis. In a February 2012 VA outpatient treatment statement, Dr. C. A. summarized the Veteran's medical history regarding the service-connected disability from 1998 to 2012. He noted that, from 2005 to the present, the Veteran has continued to experience intermittent solid food dysphagia, and over the last six months the Veteran's symptoms have intensified despite being on proton pump inhibitors. As a result, he performed an esophagogastroduodenoscopy (EGD) in February 2012 which revealed a stricture in the z-line and approximately 27 millimeter strictures at the distal esophagus successfully dilated with 33 and 36 French American bougies over a guidewire. Subsequently, Dr. C. A. performed another EGD on the Veteran in April 2012 which revealed mild stricturing of a proximal esophagus dilated with 39 French American dilators over a guidewire. Most recently at the May 2012 Board hearing, the Veteran testified that that he is board-certified in internal medicine, pulmonary disease, and critical care medicine. He reported having complaints about swallowing food, and underwent a barium swallow in 1988 which revealed a fairly large stricture in the upper portion of the esophagus, as well as three endoscopies. He testified that he initially had improvement in his swallowing, but continued to have intermittent symptoms, to include solid food sticking, which he adapted to by food choice and the manner in which he ate. Due to his avoidance of another endoscopy, the next endoscopy was performed in 2004/2005 which showed multiple rings, then in February 2012 and April 2012 he underwent additional endoscopies. The Veteran reported such symptomatology has been ongoing in which he has to watch what he eats. Moreover, since October 2008 until January 2012, the Veteran reported that on a fairly regular basis (couple of times a month), food would get stuck temporarily in which he would force it down or bring it back up. He opined that during that period and based on its size, the degree of his stricture seemed to be more moderate than anything else. He explained that a mild stricture would be something that very infrequently causes symptoms - may not cause any symptoms at all. Moreover, the Veteran characterized his most recent size, in terms of being 27 French, as a fairly narrow esophagus, so he considered that moderate in terms of the amount of stricture and the degree of symptoms. The Board finds the Veteran's opinion and reported symptomatology of moderate stricture of the esophagus for the entire initial rating period, as discussed above, provides competent lay and medical evidence in support of the claim on appeal. VA regulations provide that competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that that the proponent have specialized education, training, or expertise. 38 C.F.R. § 3.159(a)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). After fully considering the lay and medical evidence discussed above, and resolving all reasonable doubt in the Veteran's favor, the Board finds the assignment of a 30 percent disability rating, but no higher, for eosinophilic esophagitis with stricture, dysmotility, and esophageal ring is warranted for the entire initial rating period. See 38 C.F.R. § 4.114, Diagnostic Code 7203. Neither the 50 percent nor 100 percent disability rating is warranted for any period because the evidentiary record does not indicate, nor does the Veteran assert, that the service-connected disability has been manifested by severe stricture of the esophagus, permitting liquids only, or by permitting passage of liquids only with marked impairment of general health. Id. Extra-Schedular Consideration In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 (2011). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected eosinophilic esophagitis with stricture, dysmotility, and esophageal ring. A rating in excess of the 30 percent disability rating currently assigned is provided for certain manifestations of the service-connected disability at issue, but the lay and medical evidence reflect that those manifestations are not present in this case. Additionally, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disability on appeal is not required. ORDER An initial compensable disability rating for eosinophilic esophagitis with stricture, dysmotility, and esophageal ring of 30 percent, but no higher, for the entire initial rating period is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs