Citation Nr: 1302372 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 07-13 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating greater than 20 percent for duodenitis with diverticulosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from April 1972 to July 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2011, the Board remanded the present matter for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and is not intertwined with the issue decided herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The duodenitis with diverticulosis does not result in impairment that more nearly approximates moderately severe than moderate. CONCLUSION OF LAW The criteria for an initial rating greater than 20 percent for duodenitis with diverticulosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.7, 4.114, Diagnostic Codes 7327-7305 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice with respect to his initial rating claim until May 2008, after the initial adjudication of the claim, there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record reflects that all VA and private post-service medical evidence identified by the Veteran was obtained. The records associated with the Veteran's application for Social Security Administration disability benefits were also obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in January 2012. The Veteran has not asserted, and the evidence of record does not show, that his conditions have increased significantly in severity since that examination. The Veteran has also been afforded an opportunity for a hearing before a DRO or before the Board, but ultimately declined to do so. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the previous Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board acknowledges that it is unclear whether the 2012 VA examiner was provided notice of Diagnostic Codes 7301, 7305, 7319, 7323, and 7327. However, the examiner reviewed the claims file, which included these diagnostic codes, and the examination reports provide adequate information with which to rate the conditions under these diagnostic codes. Thus, the Board finds there has been substantial compliance with the Board's remand directives. Initial Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. In an appeal of an initial rating (such as in this case), consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will thus consider entitlement to "staged ratings." A September 2005 private treatment record reflects negative histories as to vomiting, diarrhea, or constipation. VA treatment records generally reflect negative histories as to diarrhea, rectal bleeding, vomiting, nausea, melena, or abdominal pain, though the Veteran reported occasional nausea after overeating in January 2011 and nausea after meals in April 2011. The Veteran does report intermittent constipation, but consistently indicates that it is controlled by senna/colace. He also consistently reports having a good appetite, and the record indicates that weight ranged between 182 and 199 pounds, with weight generally between 185 and 195 pounds. The records also reflect a finding of "mildly compromised nutrition status" and a finding of anemia, "likely due to intermittent" lower gastrointestinal bleeding based on the history of diverticulosis/hemorrhoids, during an inpatient treatment for pneumonia in February 2007. Subsequent iron studies were not suggestive of iron-deficient anemia (see April 2009 VA treatment record), however, and VA treatment records dated in December 2006, March 2007, and September 2009 reflect determinations that the Veteran had no active issues related to diverticulosis and was asymptomatic, except for occasional controlled constipation, regarding his gastrointestinal issues. The Board acknowledges that a November 2010 VA treatment record reflects a history of vomiting, abdominal cramps, and malaise, and May and June 2011 VA treatment records reflect complaints of right upper quadrant pain; however, the associated records indicate that the complaints were attributed to unrelated conditions, namely gastroenteritis and gall bladder disease respectively. A June 2005 VA examination record reflects the Veteran's history of constipation, occasional diarrhea, and a loss of 10 pounds within the past year. He also reported nausea and vomiting, but the examiner noted that the nausea and vomiting were elicited by anxiety, and the Veteran explained that he experienced nausea and vomiting when his blood sugar is low. Examination revealed that the Veteran was "overly nourished." Blood work was normal. A June 2006 VA examination record reflects the Veteran's history of vomiting and stomach upset, for which he used Mylanta and Rolaids. He explained that he experienced nausea and vomiting when his blood sugars were low. He also reported alternating constipation and diarrhea and loss of 10 pounds in the previous 10 days. He denied hematemesis or melena. Examination revealed that the Veteran was "overly nourished." There was no sign of anemia. The examiner noted that duodenitis was documented on a December 1973 EGD and that a flex sigmoidoscopy in June 2004 showed diverticulosis. The examiner diagnosed the Veteran with diverticulosis and history of duodenitis. An October 2008 VA "intestines" examination record reflects the Veteran's history of nausea, vomiting, gas, constipation, abdominal pains, and cramps. He reported that he felt "very very sick" and weak. He indicated that he had a decent appetite and denied treatment beside stool softener. The examiner noted that the Veteran did not look malnourished but did look tired and weak. The Veteran was not anemic, and there was no evidence of debility. The Veteran reported that he had lost 16 pounds in the previous two months for an unknown reason: he explained that he weighed 180 pounds and used to weigh 196 pounds. The examiner noted that the abdominal examination had to be discontinued because of severe abdominal cramps. The examiner reported that the symptoms of duodenitis included nausea, increased gas, sickness, and weakness and the symptoms of diverticulosis included constipation, cramps, straining, afraid to move bowels, sore rectum, sickness, and weakness. The Veteran was assessed with diverticulitis, duodenitis, and hemorrhoids. A January 2012 VA "stomach and duodenal conditions" examination record reflects the Veteran's history of taking Maalox, Mylanta, and Ranitidine as needed to control symptoms of stomach pain, bloating, and early fullness. He also reported eating a high fiber diet and taking colace and laxatives as needed to control his diverticulitis. The record notes that the Veteran had episodes of symptoms that were not severe, occurring four or more times each year and lasting one to nine days each episode. The Veteran also reported less than monthly episodes of abdominal pain and periodic nausea and vomiting. There was no anemia, weight loss, hematemesis, or melena, and the Veteran denied incapacitating episodes. The examiner indicated that the stomach or duodenum condition did not impact the Veteran's ability to work, explaining the Veteran's diverticulosis was an incidental, completely asymptomatic finding. The examiner determined that examination and testing did not warrant a diagnosis of duodenal ulcer, duodenitis, gastric ulcer, or hiatal hernia. There was evidence of gastroesophageal reflux on an Upper GI series. The examiner reported that there were no symptoms other than those described above and that these symptoms were "fully relieved." The examiner added that the impairment of health due to the duodenitis is "less than considerable (minimal)." A January 2012 VA "intestinal conditions" examination record reveals that the Veteran was diagnosed with diverticulosis in 2004. The Veteran reported that he prophylactically ate a high fiber diet and took colace and laxatives as needed. The examiner noted that continuous medication was not needed for control of the Veteran's intestines and that the Veteran had not had surgical treatment for an intestinal condition. The Veteran did not have any signs or symptoms attributable to the diverticulosis. He also did not have any episodes of bowel disturbance with abdominal distress or exacerbations, attacks of the intestinal conditions, or associated weight loss, malnutrition, or serious complications or other general health effects. The examiner reported that diverticulosis is an incidental, completely asymptomatic finding at routine sigmoidoscopy, noting that repeat colonoscopy in 2009 did not reveal diverticulosis. The examiner reported that review of the claims file revealed no signs or symptoms of diverticulosis. The Veteran's duodenitis with diverticulosis is rated at 20 percent under Diagnostic Code (DC) 7327-7305. Ratings under DC 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. Diagnostic Code 7327, which rates diverticulitis, provides that the condition should be rated as for irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture. The applicable rating criteria provide a 10 percent rating for moderate peritoneal adhesions characterized by pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea constipation (perhaps alternating with diarrhea) or abdominal distension or a 30 percent rating for moderately severe peritoneal adhesions characterized by partial obstruction with delayed motility of barium meal and less frequent and less prolonged episodes of pain; severe irritable colon syndrome characterized by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress; and moderately severe ulcerative colitis with frequent exacerbations. 38 C.F.R. § 4.114, Diagnostic Codes 7301. Diagnostic Code 7305, which rates duodenal ulcers, provides a 20 percent rating for recurring episodes of severe symptoms two or three times a year averaging 10 days or more in duration or for continuous moderate manifestations. A 40 percent rating is authorized for moderately severe manifestations 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. Review of the record indicates that a higher rating is not warranted at any time during the appellate period because the probative evidence does not suggest that the Veteran's condition more nearly approximates moderately severe impairment than the lesser impairment contemplated by the assigned rating. VA examiners have assessed the conditions as "asymptomatic" and "minimal, and the evidence does not otherwise suggest that the duodenitis with diverticulosis results in more than moderate impairment. The conditions do not result in anemia or incapacitating episodes, and treatment records overwhelmingly reflect negative histories as to any symptoms other than constipation, which is controlled and intermittent. Furthermore, the Veteran is able to maintain at least a "decent" appetite and has not reported occupational impairment or impairment of daily activities due to the conditions, and although he has reported episodes of significant weight loss, these histories are not corroborated by the medical record which reveals relatively stable weight. The Board acknowledges that the Veteran reported alternating periods of constipation and diarrhea during examinations and in statements. However, these manifestations are contemplated by the assigned rating. The Board has considered whether there is any other schedular basis to grant this claim but has found none. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not in order. ORDER An initial rating greater than 20 percent for duodenitis with diverticulosis is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs