Citation Nr: 1237484 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 09-19 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable rating for rumination syndrome, rated as noncompensably disabling from November 13, 2007 to May 1, 2011, and as 10 percent disabling from May 2, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active service from November 2005 to January 2006, and from August 2006 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio granted service connection for rumination syndrome (zero percent, from November 13, 2007). By a May 2012 rating action, the Appeals Management Center (AMC) concluded that a 10 percent rating was warranted from the date of a VA examination, May 2, 2011. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). As noted above, during the pendency of this appeal, the Veteran was awarded an increased rating of 10 percent for his service-connected rumination syndrome. He has not suggested that this increased rating would satisfy his appeal for a higher evaluation of his rumination syndrome, nor has he or his representative otherwise suggested that the maximum rating available for that disability is not being sought. Therefore, the Board concludes that the issue of entitlement to a higher initial rating for rumination syndrome remains before the Board. In March 2011, the Board remanded this claim to obtain additional treatment records and to accord the Veteran a VA examination. Review of the record reflects substantial compliance with these directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. From November 13, 2007 to November 18, 2008, the service-connected rumination syndrome was manifested by regurgitation. 2. Since November 18, 2008, the service-connected rumination syndrome has been manifested by dysphagia, regurgitation, and pyrosis, but not by substernal or arm or shoulder pain or by considerable impairment of health. CONCLUSIONS OF LAW 1. From November 13, 2007 to November 18, 2008, the criteria for an initial compensable rating for rumination syndrome have not been met. 38 U.S.C.A. §§ 1155, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1 - 4.7, 4.114, Diagnostic Code (DC) 7346 (2012). 2. From November 18, 2008, the criteria for an initial rating of 10 percent for rumination syndrome have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1 - 4.7, 4.114, DC 7346 (2012). 3. The criteria for a rating in excess of 10 percent for rumination syndrome have not been met. 38 U.S.C.A. §§ 1155, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1 - 4.7, 4.114, DC 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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. 2012); 38 C.F.R. §§ 3.102, 3.1756(a), 3.159 and 3.326(a) (2012). 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran's initial rating claim is a "downstream" issue in that it arose from the initial grant of service connection. Prior to the June 2008 rating action, a letter dated in December 2007 advised the Veteran of the evidence necessary to substantiate his claim for service connection for this disability and of his and VA's respective obligations with regard to obtaining evidence. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated. 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 a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs) and post-service medical records and also secured an examination in furtherance of his claim. The Veteran has not identified any additional pertinent medical records, which have not been obtained and associated with the claims folder. See 38 C.F.R. § 3.159(c)(1)-(3). A pertinent VA examination with respect to the issue on appeal was obtained in May 2011. See 38 C.F.R. § 3.159(c)(4). 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); 38 C.F.R. § 3.159(c)(4). The VA examination obtained here is sufficient, as it considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. VA has no duty to assist that was unmet. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Thus, the Board will evaluate the rumination syndrome issue as a claim for a higher evaluation of the original award. When an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. As discussed below, the Board concludes that a staged rating is warranted. The Veteran's rumination syndrome is rated as zero percent or noncompensably disabling from November 13, 2007 to May 1, 2011, and as 10 percent disabling since May 2, 2011. The Veteran contends that his rumination syndrome is more severe than the assigned ratings. The Board finds that the pertinent medical findings, as shown in the examination conducted during the current appeal and VA treatment records, directly address the criteria under which this service-connected disability is evaluated and are, thus, more probative than the subjective evidence of complaints regarding the severity of the pertinent symptomatology. The Veteran's rumination syndrome is rated by analogy under DC 7346, which evaluates impairment from a hiatal hernia. Specifically, pursuant to DC 7346 a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity. 38 C.F.R. § 4.114, DC 7346 (2012). A 30 percent rating is warranted where there is 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 evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health. Id. According to his post-service treatment records, the Veteran reported no difficulty in swallowing, but complained of spitting up foods, both solid and liquid, ten to 20 minutes after eating in December 2007. His regurgitation lasted for two to three hours and he had lost some weight. He denied bloating and diarrhea. A gastroenterology consultation in February 2008 reveals that the Veteran reported bland regurgitation of material anywhere from 20 minutes up to two hours following a meal. A couple of times per week he had some nocturnal regurgitation usually of vegetable matter such as lettuce. His regurgitation occurred after almost every meal to some degree and consisted of only a small amount of the meal. He had no associated change in bowel habits or abdominal pain. There was no associated nausea. He had run a marathon recently and lost a few pounds in weight. He reported that he thought that concerns about rumination affected his appetite somewhat, and he tended to have some early satiety, which he thought was related to his fear of regurgitating. In May 2008, the Veteran continued to complain of regurgitation. Examination in November 2008 revealed that the Veteran's gastrointestinal system was within normal limits but he did complain of dysphagia and regurgitation. The Veteran was again shown to have reported dysphagia and continued symptoms of regurgitation in December 2008. The Veteran was seen in an emergency room in January 2009 for his symptoms. He reported spitting up food and stomach pain. He had been unable to keep food down for four days. He denied any bowel and bladder difficulty. The Veteran also had a few hours of intermittent chest pain. He was diagnosed with dysphagia and chest pain of unclear etiology. He reported some regurgitation on a daily basis as well as dysphagia in February 2009. A record dated in March 2009 indicates that the Veteran had a continued reduction in regurgitation. At a fee-based examination in November 2009 for his posttraumatic stress disorder (PTSD), the Veteran reported that his psychiatric symptoms included gastrointestinal distress and that he had lost 15 pounds. The Veteran again complained of regurgitation in October 2010. He reported chronic daily episodes of food and fluid regurgitation. He denied pain, but reported maybe having a little epigastric bloating. Examination of his gastrointestinal system was within normal limits. The Veteran was afforded a VA examination in May 2011. He continued to have exacerbations of contents of food or liquid coming up his throat from immediately to eight hours after eating daily that ranged from a small amount to the entire meal. He had mild heartburn daily, but denied arm or chest pain. He denied anemia. The Veteran's weight fluctuated within five to ten pounds. He denied hematemesis or melena. He had epigastric pain prior to contents coming up his throat. The Veteran was able to maintain a job and had not called off work due to his rumination syndrome, although that condition did disrupt his daily routine during his work; the Veteran reported having to frequently go to the bathroom and spit up. His weight remained stable within a ten pound range. He was able to perform his activities of daily living. His reported medical history included nausea and vomiting daily and no hematemesis or melena. He also had no diarrhea and constipation. There were no periods of incapacitation due to stomach or duodenal disease. His epigastric pain was reportedly sharp and intermittent and was precipitated by eating, drinking, stress, and eating fast. He had had lost ten pounds in the last year. There were no signs of anemia. Diagnostic testing revealed mild gastroesophageal reflux. As noted above, the AMC concluded that a staged rating was warranted, with a 10 percent evaluation warranted from May 2, 2011, the date of the VA examination. However, after reviewing the evidence, the Board finds that the Veteran's service-connected rumination syndrome warrants the assigned 10 percent rating since November 18, 2008. In this case, the evidence shows that since the initial award of service connection until November 18, 2008, the Veteran's rumination syndrome has been manifested by regurgitation. His pertinent treatment records for this time period show complaints of regurgitation, but of no other symptoms such as dysphagia, pyrosis, or substernal or arm or shoulder pain. Thus, a compensable rating prior to November 18, 2008, is not warranted. However, the November 18, 2008, treatment record shows that in addition to regurgitation, the Veteran also complained of dysphagia. Treatment records dated in January 2008 and February 2009 continued to show complaints of dysphagia. At the May 2011 VA examination, although no dysphagia was reported, the Veteran did report having pyrosis. When affording the Veteran the benefit-of-the-doubt, the Board concludes that since November 18, 2008, the Veteran's service-connected rumination syndrome includes symptoms of regurgitation, dysphagia, and pyrosis. Although the records do not indicate having all three symptoms at the same time, the evidence does reflect the Veteran having at least two of those symptoms since November 18, 2008. Therefore, as two or more of the symptoms for the 30 percent evaluation are present, a compensable 10 percent rating effective November 18, 2008, is warranted. The Board also finds that a rating in excess of 10 percent since November 18, 2008, is not warranted. As discussed above, the next higher rating of 30 percent requires persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. Although the Veteran has dysphagia, pyrosis, and regurgitation, the evidence fails to show that such symptoms are accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. Although the January 2009 emergency room record showed a complaint of chest pain, it was diagnosed as being of unclear etiology. In other words, the record fails to show that such pain was due to the Veteran's service-connected rumination syndrome. Additionally, none of his pertinent treatment records contain any complaints of substernal or arm or shoulder pain. The Veteran specifically denied arm or chest pain at the May 2011 VA examination. The overall evidence fails to show that his symptoms include substernal or arm or shoulder pain. Furthermore, the evidence does not show that the Veteran's symptoms have been shown to be productive of considerable impairment of health. In this regard, the Board notes that the Veteran's numerous treatment records throughout the pendency of his appeal show the use of medication, and also show that he is routinely seen by his health care providers for his rumination syndrome. However, the May 2011 examiner opined that the Veteran's rumination syndrome had no effects on his daily activities. Additionally, the Veteran reported that he had not missed work due to his disability. Although his rumination syndrome causes him frequent trips to the bathroom at work, the evidence fails to indicate that his overall occupation is negatively impacted by his rumination syndrome. Moreover, the Veteran himself has not contended that his rumination syndrome is productive of considerable impairment of health. The totality of the evidence reveals that the Veteran's overall health has not been shown to be considerably impaired due to his digestive disability. Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's rumination syndrome warrants a compensable rating prior to November 18, 2008, or a rating in excess of 10 percent at any time since November 18, 2008. In reaching this decision, the Board also finds that the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that the rumination syndrome has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, the Board notes that it is undisputed that the rumination syndrome has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above. 38 C.F.R. § 4.10. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of these issues to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Moreover, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, as a result of his service-connected rumination syndrome. Indeed, the Veteran has been shown to be employed throughout this appeal. The issue of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has, therefore, not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial compensable rating prior to November 18, 2008 for rumination syndrome is denied. Entitlement to an initial rating of 10 percent, but no higher, effective from November 18, 2008, for rumination syndrome is granted, subject to the law and regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent for rumination syndrome is denied. ____________________________________________ REBECCA N. POULSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs