Citation Nr: 1302005 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-03 909 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for gastritis with gastroesophageal reflux disorder (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and his spouse ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from November 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the VARO in New Orleans, Louisiana, which, in pertinent part, granted service connection for gastritis with GERD and assigned a 10 percent disability rating, effective August 16, 2004, the day following the Veteran's separation from active service. In June 2010, the Veteran and his wife testified in a video-conference hearing before a Veterans Law Judge who is no longer employed by the Board. In August 2010, the Board remanded the case to the RO by way of the Appeals Management Center for the purpose of scheduling the Veteran for a rating examination in order to ascertain the current severity of his service-connected gastritis with GERD. In June 2012, the Board sent a letter to the Veteran offering him an opportunity to testify at another Board hearing before a Veterans Law Judge who would decide his claim on appeal pursuant to the provisions of 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In June 2012, the Veteran asked to be scheduled for an additional video-conference hearing before a Veterans Law Judge who would decide his appeal. The case was then remanded by the Board in July 2012 in order that the Veteran might be scheduled for a video-conference at the RO in New Orleans. The record shows the Veteran was scheduled for a video-conference hearing on November 27, 2012, but in a communication dated that same day, the Veteran's accredited representative indicated the Veteran would not be able to attend the hearing and did not want to reschedule it. The Veteran and his representative asked that the Board decide the issue on appeal based on the evidence of record, including the transcript of the prior hearing held in June 2010. The Board notes that a transcript of that hearing is of record and has been reviewed. FINDINGS OF FACT 1. Manifestations of the Veteran's gastritis with GERD prior to June 21, 2010, included complaints of intermittent pyrosis, dysphagia, pain, nausea, and regurgitation, with no indication of considerable impairment of health. 2. Since June 21, 2010, the Veteran's gastritis with GERD has been manifested by an increased frequency of his symptoms, such that they are persistently recurrent. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for gastritis with GERD prior to June 21, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.114, Diagnostic Codes 7307-7346 (2012) 2. The criteria for a disability rating of 30 percent, but not more, for gastritis with GERD since June 21, 2010, have been met. 38 U.S.C.A. § § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.114, Codes 7307-7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claim Assistance Act of 2000 (VCAA) The Veterans Claim Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist a Veteran in developing a claim for VA benefits. Regulations implementing the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that 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 elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the claim for a higher rating for gastritis with GERD arises from the Veteran's disagreement with a rating assigned in connection with the grant of service connection for the disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to a "downstream" question, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with downstream elements (such as a disability rating or effective date) are appropriately dressed under the provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary. In any event, the Veteran was provided proper notice by letters from the RO dated in December 2004, May 2008, and March 2009. The claim was most recently readjudicated in a November 2011 supplemental statement of the case. The Board also notes that the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all identified post service treatment records, i.e., VA treatment records. The Veteran has been afforded VA examinations and the examinations are adequate, as they are thorough and detailed. The September 2010 VA examination is in compliance with the prior Board remand, as the information requested by the Board was provided. The Veteran and his wife testified at a June 2010 Board video-conference hearing. The Veterans Law Judge who presided at the hearing is no longer at the Board. The Veteran was provided with the opportunity to have another hearing but in a communication dated in November 2012, he and his representative stated they would not be able to attend the rescheduled hearing and did not want to reschedule it. It was requested that the Board decide the issue based on the evidence of record. In view of the foregoing, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating is therefore ready to be considered on the merits. Pertinent Law and Regulations Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity as determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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) Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Background and Analysis In January 2006, the RO awarded service connection for gastritis with GERD and assigned a 10 percent rating effective August 16, 2004, the day following the Veteran's separation from active service. At the outset, the Board notes that 38 C.F.R. § 4.113 states that diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, coexisting diseases in this area, do not lend themselves to distinct and separate evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. Hence, the ratings under Diagnostic Codes 7301 to 7329, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. Here, the Board finds that the GERD is the Veteran's predominant disability. The Veteran's gastritis with GERD has been rated under 38 C.F.R. § 4.114, Diagnostic Codes 7307-7346, as 10 percent disabling. Under Code 7307, a 10 percent rating is assigned for chronic gastritis with small nodular lesions and symptoms. The next higher rating of 30 percent is assigned for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. The next rating of 60 percent is authorized for gastritis which is chronic, with severe hemorrhages, or large ulcerated or eroded areas. Under Code 7346, a 10 percent rating is assigned for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of lesser severity. The next higher rating of 30 percent is provided for 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. The maximum rating of 60 percent is authorized for hernia with symptoms of pain, vomiting, material weight loss, and hemetemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Code 7346. The Board has considered evaluating the service-connected gastritis with GERD under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds none that would avail the Veteran of a higher disability rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The pertinent medical evidence of record includes the report of a general medical examination accorded the Veteran by VA in December 2004. The medical records were reviewed by the examiner. The Veteran noted he had symptoms of burning sensation. Testing reportedly showed antral gastritis and esophagitis. He was currently taking Omeprazole that was helping. No side effects were reported. Height was 68 inches and weight was 195 pounds. Clinical examination was unremarkable. He was given a pertinent diagnosis of gastritis with esophagitis on medication. VA outpatient treatment records showed complaints of epigastric discomfort, radiating into the chest and up into the neck, described as a burning sensation, in December 2004. The Veteran was taking Prilosec and stated that his symptoms were intermittent. In July 2005, the Veteran reported a good response with Prilosec. In April 2006, the Veteran reported epigastric and retrosternal pain and belching since 2003. He reported intermittent mid-epigastric discomfort. GI endoscopy in May 2006 showed mild distal esophagitis. The Veteran was accorded an esophagus and hiatal hernia examination by VA in November 2007. For some reason, the records were not made available to the examiner for review. The Veteran indicated he was currently employed on a full-time basis. He reported that his GERD was under fair control with Omeprazole. He experienced occasional flare ups about once every 2 or 3 months. The examiner noted that the Veteran had not had any anorexia issues, but did complain of intermittent nausea, intermittent mild dysphagia, and frequent burning discomfort. The Veteran also reported experiencing frequent regurgitation about once weekly, with intermittent hiccups, flatulence, and belching. No constipation or diarrhea was reported. The examiner stated that the gastrointestinal disorder did not interfere with the Veteran's usual daily activities or his current employment. Current examination of the abdomen was unremarkable without abdominal tenderness, rebound tenderness, rigidity, or palpable organomegaly, or palpable masses. The Veteran was described as in "normal general state of health without signs of anemia." He was described as very well nourished without significant weight loss or weight gain. An upper gastrointestinal series was interpreted as being normal. He was given a diagnosis of history of chronic gastritis, hiatal hernia, and GERD (on Omeprazole treatment); notation was made that upper gastrointestinal series was normal, but the examiner noted this did not exclude the possibility of intermittent sliding hiatal hernia. At the time of the video-conference hearing in June 2010, the Veteran testified that he had increased intestinal pain and burning, diarrhea, difficulty swallowing solids and liquids. (Transcript, pages 4-5, 9). He also stated he had flare up with symptoms a couple times a day. He referred specifically to diarrhea and discussed the impact on his employment and his personal life. (Transcript, pages 6, 12). His spouse also testified that she believed his symptoms had increased in severity. (Transcript, page 10). Additionally, the Veteran stated that he had discontinued VA treatment because it was not helping his condition. He indicated he was using over-the-counter medications with a restrictive diet to try to control the disorder. When asked about missing work because of his symptoms, he stated he had not missed any "recently. I go to work, and I just basically try to deal with it and use the over-the-counter stuff and..." (Transcript, page 8). The Veteran was afforded another examination by VA in September 2010. The claims file was reviewed by the examiner. The Veteran stated that since service he had had problems like heart burn and pressure going to his throat. He also reported occasional nausea, but stated he had experienced no vomiting. He reported having loose bowels once or twice a day. He reported having been treated with Omeprazole and stated this provided some relief. He was currently taking Protonix. He experienced no passing of dark or bloody stools. There had been no weight loss or hemetemesis. He was still experiencing a burning sensation behind the sternal area going into the throat. He also gave a history of regurgitating fluid with heartburn. He reported he was taking 40 milligrams of Pantoprazole by mouth on a daily basis. There was no history of hospitalization or surgery and there was no history of trauma to the digestive system or neoplasm. No hernia was present. The Veteran was described as overweight, but specifics were not provided. Bowel sounds were normal. The Veteran was still employed on a full-time basis as a policeman. He stated that during the past year he had lost less than one week of work and this was because of heartburn and abdominal discomfort and nausea. As for impact on his occupation, the examiner stated the Veteran sometimes needed to move his bowels and this interfered with the Veteran's duties. He also reported feelings of nausea and burning mostly in the morning. As for functional impairment, mild impairment was reported with regard to chores, sports, recreation, travel, and toileting. No impairment was reported with regard to shopping, exercise, feeding, bathing, dressing, or grooming. The examiner stated the Veteran continued to have GERD with heartburn and reflux despite taking medication. He had no difficulties swallowing, vomiting, or passing blood in the stool. No weight loss or anemia was noted. He admitted to flare ups once or twice a month when abdominal pain would get worse and he would experience difficulty with swallowing, but he denied any vomiting. The examiner stated these symptoms occurred mostly with certain foods. In view of the foregoing, the Board finds no basis for assignment of an initial evaluation in excess of 10 percent at any time prior to June 21, 2010, the time of the personal hearing. Prior to that date there was no evidence of chronic gastritis with multiple small eroded or ulcerative areas and symptoms or hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, or regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. As noted above, GI endoscopy in May 2006 showed only mild distal esophagitis. The Veteran complained of pyrosis (i.e., a burning sensation), dysphagia, substernal pain, nausea, and regurgitation. However, his symptoms were primarily described as occasional and intermittent, as opposed to persistently recurrent. In November 2007, he reported that his GERD was under fair control with medication and he experienced flare ups only about once every 2 or 3 months. In addition, there was no indication of considerable impairment of health. Rather, the November 2007 VA examiner described the Veteran as in "normal general state of health without signs of anemia." He was described as very well nourished without significant weight loss or weight gain. An upper gastrointestinal series was interpreted as being normal. Thus, the preponderance of the evidence is against entitlement to a rating in excess of 10 percent prior to June 21, 2010. At the June 2010 hearing the Veteran and his wife testified as to increased symptoms he was experiencing, stating that he had flare ups with symptoms a couple of times a day. On VA examination in September 2010, the Veteran described symptoms consistent with those reported above, with the addition of having loose bowels once or twice a day. There was an increase in frequency of the Veteran's symptoms, as he now reported having flare ups once or twice a month when abdominal pain would get worse. Thus, the Veteran's symptoms were persistently recurrent. The Board finds the Veteran and his wife to be credible in their description of his difficulties. Therefore, the Board finds a reasonable basis to conclude that the Veteran's disability picture more nearly approximates the criteria for the 30 percent rating from the time of the video-conference hearing, June 21, 2010. However, the preponderance of the evidence is against entitlement to a rating in excess of 30 percent. There was no evidence of chronic gastritis, with severe hemorrhages, or large ulcerated or eroded areas; or of symptoms of pain, vomiting, material weight loss, and hemetemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Although the Veteran has complained of pain, he has consistently denied vomiting, including on VA examination in September 2010. He also denied weight loss, bloody stools, and hemetemesis. There has been no evidence of anemia or severe impairment of health. The Veteran is employed on a full time basis and in September 2010 reported that he missed only one week of work during the past year. For the foregoing reasons, the preponderance of the evidence reflects that, for the GERD prior to June 21, 2010, the symptoms of the Veteran's disability do not more nearly approximate the criteria for a higher rating than the initial rating of 10 percent. The disability picture since June 21, 2010, however, with resolution of all reasonable doubt in the Veteran's favor, does warrant the assignment of a 30 percent rating, but no higher, for the Veteran's gastrointestinal symptoms. The Board has considered whether the claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012). Because the ratings under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these cases is a finding that the disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). The determination of whether a veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. The Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms (such as his pyrosis, dysphagia, pain, nausea, and regurgitation) are contemplated by the rating criteria, as discussed above. While the Veteran has also complained of loose stools, 38 C.F.R. § 4.113 states that diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, which was done here. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The evidence does not indicate that the Veteran's disability presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that veteran's case does not ordinarily provide a basis for extraschedular consideration. Id. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. Because the Board finds that the symptoms and functional limitations caused by the Veteran's gastritis with GERD are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2011); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial disability rating in excess of 10 percent for the Veteran's gastritis with GERD prior to June 21, 2010, is denied. A disability rating of 30 percent, and not higher, for the Veteran's gastritis with GERD from June 21, 2010, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs