Citation Nr: 1304858 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-19 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable rating for gastritis, due to H. Pylori stomach bacteria. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from January 1957 to August 1959. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The evidence of record does not establish the Veteran has chronic gastritis with symptoms and small nodular lesions, multiple small eroded or ulcerated areas, or severe hemorrhages or large ulcerated or eroded areas. CONCLUSION OF LAW The criteria for a compensable rating for disability due to gastritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7307 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In August 2007 the Veteran filed a claim seeking service connection for gastritis, due to H. Pylori stomach bacteria. Service connection was granted and a noncompensable rating was awarded under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7307. The Veteran contends he should be entitled to a compensable initial rating due to his previous history of pain and suffering for several decades, as well as some ongoing pain. Diagnostic Code 7307 (the important issue in this case) provides that a 10 percent rating will be assigned for chronic gastritis with small nodular lesions and symptoms, and a 30 percent rating will be assigned for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. A maximum 60 percent rating will be assigned for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307. As will be discussed below, the evidence does not establish that the Veteran is entitled to a compensable rating for his gastritis. The Veteran asserts he has suffered severe stomach pain for several decades. In his September 2007 written statement the Veteran asserted he had a history of stomach pain since 1958, while still in active duty military service, and did not receive relief until he was diagnosed with H. Pylori stomach bacteria in 2005. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, including pain in his stomach. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran is competent to testify as to his history of stomach pains. His statement is further supported by a written statement submitted by his wife that same month, as well as the medical evidence of record which confirms the Veteran's diagnosis in 2005. As such the Board finds the Veteran's lay testimony regarding his previous severe stomach pain to be credible. However, the Veteran did not file a claim for disability benefits during the prolonged period in which he experienced severe stomach pain between 1958 and 2005. Instead, the Veteran first filed his claim for stomach pain in August 2007, and was granted service connection effective as of that date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. It is not disputed that the Veteran experienced symptoms of gastritis for a number of decades. It was for this reason that service connection was granted. The Veteran has requested retroactive payment for all of the years he was symptomatic following service. It appears that after he began receiving treatment for this problem, the symptoms subsided. Unfortunately, VA regulations prohibit such a payment under the Veteran's theory. Rather payment only begins as of the effective date of the claim. Per 38 C.F.R. § 3.400 the effective date for a grant of service connection is the latter of the date of claim or the date of entitlement. Simply stated, VA cannot grant the Veteran compensation in most cases before he has filed a claim with VA. Here, it is not disputed that the Veteran had symptoms for many years before filing his claim. Thus the earliest effective date, the date the claim was received in 2007, was granted. Therefore, the Veteran has not established service connection for the several decades during which he suffered severe stomach pain, and as such that time frame is not subject to this claim. Rather, the Board will address the level of the Veteran's disability since August 2007, the date he filed his initial claim for benefits and was granted service connection. As discussed above, the Veteran's stomach pain was properly diagnosed in 2005 when medical testing established the Veteran had H. Pylori stomach bacteria which was causing gastritis. The Veteran then received treatment for his condition. In May 2008 the Veteran's private physician wrote that since receiving proper treatment for H. Pylori, the Veteran's symptoms of gastritis have been stable. The physician's assessment is supported by a statement from the Veteran in September 2007 who wrote that following treatment in 2005 he now "finally has some relief" after almost fifty years of suffering. That same month the Veteran's wife wrote that his pain is now bearable, describing the Veteran's current condition as "tolerable suffering." As such, the evidence of record suggests the Veteran's symptoms have largely resolved, though there is some suggestion of ongoing symptoms of gastritis. Based on the foregoing the Veteran was provided a VA examination in December 2008 to assess the current state of his stomach condition. The examiner reviewed the Veteran's claims file, personally interviewed and examined the Veteran, and conducted the appropriate testing, including taking an x-ray of the Veteran's abdomen and pelvis. The Veteran reported ongoing occasional nausea about once every two months, as well as diarrhea two to three times a month when he is emotionally upset. The Veteran reported treating both conditions with over the counter medication when they occur. The examiner noted that the treatment for H. Pylori in 2005 resolved the Veteran's symptoms of gastritis and he had not required retreatment since then, a statement which provides evidence against the current claim. Physical examination found no abdominal tenderness or masses. X-ray revealed gastroesophageal reflux, but the stomach and esophagus were otherwise normal, with no evidence of hiatal hernia, masses, or ulcerations. After reviewing all of the above the examiner opined the Veteran has chronic gastritis due to H. Pylori infection which is currently resolved due to treatment in 2005. Evidence in the record suggests the Veteran does continue to experience some stomach pain. In February 2010, the Veteran returned to his private physician due to re-experiencing the same pain as he previously had with H. Pylori. In a written statement in July 2010 the Veteran stated that his stomach continued to cause him a little pain almost every day. The Veteran asserted that due to this ongoing pain he should be entitled to a compensable rating for gastritis. Under the regulations a 10 percent rating will be assigned if the Veteran has chronic gastritis with small nodular lesions and symptoms. The Veteran, however, does not exhibit all three of these elements. The VA examiner did find the Veteran has chronic gastritis, and the Veteran's credible lay testimony does establish that he continues to have symptoms of gastritis, albeit these symptoms are now mild and infrequent. However, the medical evidence of record does not establish that the Veteran has small nodular lesions. Instead, the most recent x-ray evidence of record, the x-ray performed in December 2008, reveals the Veteran does not have any evidence of ulcerations. Therefore the weight of the medical evidence does not establish that the Veteran currently has small nodular lesions, and the criteria for a ten percent rating for current disability due to gastritis have not been met. 38 C.F.R. § 4.114, DC 7307 (2012). A 30 percent rating will be assigned if the Veteran has chronic gastritis with multiple small eroded or ulcerated areas and symptoms. The most recent x-ray which reveals the Veteran does not have any evidence of ulcerations also establishes that the Veteran does not have eroded or ulcerated areas. Therefore the criteria for a 30 percent rating have not been met. Id. Finally, a maximum 60 percent rating is assigned if the Veteran has chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. The medical evidence does not include any record of treatment for severe hemorrhages, and the most recent x-ray did not reveal any ulcerated areas. As such, the criteria for the maximum compensable rating have not been met. Id. Therefore, the criteria for a compensable rating under 38 C.F.R. § 4.114, DC 7307 have not been met. Additionally, as discussed above, the Board cannot address if the Veteran would have been entitled to a higher disability rating before receiving treatment in 2005, as the Veteran did not file his application for benefits until August 2007. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As such, the Veteran's claim for a compensable rating for gastritis is denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular 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. This means that initially there must be a comparison between 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. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran'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"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's gastritis that would render the schedular criteria inadequate. The Veteran's main complaint is pain in his stomach, which is contemplated in the rating assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran has medically retired and no longer working. However, the Veteran's medical retirement is due to an unrelated work injury to his back, and there is no suggestion that his gastritis caused the Veteran's retirement, or would otherwise interferes with his current ability to work. Furthermore, at the Veteran's VA examination the examiner stated that since treatment had been provided, the attacks of gastritis have ceased and the Veteran's daily life is no longer affected. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected gastritis. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for gastritis was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private treatment records have been obtained, and the Veteran has not alleged he received any treatment at a VA facility. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Board recognizes that the claims file contains indication that the Veteran began receiving social security disability benefits in the late 1970s and that these medical records are held by another federal agency and were not obtained by the VA for processing in this claim. § 5103A(c)(3). However, the Board finds the referenced social security records are not even potentially relevant to this claim for two reasons. First, this is a claim for an increased disability rating focused only on the time period since 2007, when service connection was granted. As such, records used to support an application to social security several decades earlier are not potentially relevant. Second, the Veteran indicated that his social security disability benefits are based on his back disability and not his gastritis. An injury to the Veteran's back approximately thirty years earlier is not potentially relevant to his current claim for an increased rating for gastritis since 2007. See 38 U.S.C. § 5103A(a)(2) ("Secretary is not required to provide assistance to a veteran under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim."); Golz v. Shinkseki, 590 F. 3d 1317, 1321 (Fed. Cir. 2010) (Holding that not all social security disability records must be sought, only those that are relevant to the veteran's claim. Concluding otherwise would render the word "relevant" superfluous). Accordingly, the Veteran was not prejudiced by any failure to associate the social security records with the claims file. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for a compensable initial rating for gastritis is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs