Citation Nr: 1308671 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-29 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an increased compensable evaluation for residuals of balloon dilations of the esophagus manifested by chest pain and acid reflux. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO effectuated a December 2006 Board decision which granted compensation under 38 U.S.C.A. § 1151 for chest pains and acid reflux as a result of a balloon dilations of the esophagus performed at a VA medical facility in October and December 1992. The Veteran disagreed with the assigned noncompensable disability rating and perfected his appeal by filing a timely substantive appeal (VA Form 9) in July 2007. In an April 2011 Board decision, the claim was remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in an April 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. In July 2011, the Veteran filed a claim of entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities, which has not yet been adjudicated by the RO. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board recognizes that the Veteran's contentions of TDIU appear to be based upon chest pain; however, as this issue has been raised before the Agency of Original Jurisdiction (AOJ) and has not yet been developed, the Board will refer the issue of entitlement to TDIU to the AOJ for appropriate action. FINDING OF FACT The residuals of balloon dilations of the esophagus are manifested by pyrosis and substernal pain; without dysphagia or regurgitation. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for residuals of balloon dilations of the esophagus are met. 38 U.S.C.A. §§ 1155, 5103A, 5107(West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.114, Diagnostic Code (DC) 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has the 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, 3.156(a), 3.159 and 3.326(a) (2012). The veteran's increased rating claim arises from his disagreement with the initial evaluations following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), Social Security Administration (SSA) records, as well as VA and private treatment records in furtherance of his claim. The Board recognizes that the Veteran reported private medical treatment, the records of which are not contained in the claims file. See the VA examination report dated April 2011. However, despite appropriate VCAA notice as indicated above, the Veteran has not provided VA with the appropriate release of information forms which would allow VA to identify and obtain such outstanding records. Accordingly, there is no indication that any additional action is needed to comply with the duty to assist. Pursuant to the April 2011 Board Remand, the Veteran was recently afforded a VA examination in November 2011 as to his pending claim. The examination report reflects that the VA examiner thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and provided an opinion that appears to be consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the November 2011 VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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. Here, the Veteran contends that his residuals of balloon dilations of the esophagus, specifically chest pains and acid reflux, are more severe than the rating currently assigned. See, e.g., the Veterans' notice of disagreement dated January 2007. There are 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, certain coexisting diseases in that area, as indicated in the instruction under the title Diseases of the Digestive System, do not lend themselves to distinct and separate disability ratings without violating the fundamental principle relating to pyramiding. 38 C.F.R. §§ 4.14, 4.113 (2012). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2012). In this matter, a review of the record demonstrates that the RO has rated the Veteran's residuals of balloon dilations of the esophagus under DC 7203 [esophagus, stricture of]. Although the Board recognizes that the Veteran is diagnosed with an esophageal stricture, a review of the record demonstrates that the specific symptomatology identified by the Veteran is chest pain and acid reflux. Therefore, the Board finds the Veteran's symptoms are more analogous to those set forth under DC 7364 (hiatal hernia). Accordingly, the Board will rate the Veteran's residuals of balloon dilations of the esophagus by analogy to hiatal hernia under 38 C.F.R. § 4.114, DC 7346. Under that diagnostic code, the maximum schedular rating of 60 percent rating is warranted when there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is warranted when 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. A 10 percent rating is warranted for two or more of the symptoms for the 30 percent rating of less severity. 38 C.F.R. § 4.114, DC 7346 (2012) The Veteran filed his original claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of balloon dilations of the esophagus in September 1996. At that time, he stated that he experienced "very severe problems of chest pain and fatigue and acid reflux" as a result of the balloon dilations. He also stated that "I am living on Tylox and monitor my diet very carefully." In a letter dated October 1996, Dr. L.A. stated that the Veteran is able to swallow but "may still suffer from chest pain in addition to" heartburn symptoms. In a second October 1996 letter, Dr. L.A. stated that the Veteran has continued to experience "chest discomfort necessitating treatment with initially Demerol and most recently with Tylox." In a January 1997 letter, the Veteran again endorsed severe chest pains "every time I bend over or when I don't eat on time." In a February 1997 letter, Dr. L.A. described the Veteran's severe chest pain and noted that he was treated in the past with pain medication in addition to his antiacid medications without much relief of his pain. He noted that "[t]he patient's pain is severe enough that it has altered his eating pattern and he has lost weight." Similarly, in a September 1997 letter, Dr. L.A. stated the Veteran "will need to be on lifelong acid suppressing medications and has also needed to be on pain medications. There is also a chance of esophageal cancer occurring, necessitating frequent endoscopic monitoring." In October 1997, the Veteran testified at a RO hearing at which time he described his chest pains due to his damaged esophagus. He further endorsed problems swallowing "because of the chest pains I get at any time." See the October 1997 RO hearing transcript, pg. 10. He also described experiencing spasms of the esophagus. Id. At a February 1999 Board hearing, the Veteran endorsed crippling chest pains at least three times daily. See the February 1999 Board hearing transcript, pgs. 6-7. The Veteran was afforded a VA examination in June 2002 which noted that since the balloon dilations of the esophagus in 1992, the Veteran "has severe heartburn and esophageal spasms and is on methadone and Pepcid." The examiner noted that the Veteran's "retrosternal pains are constant and radiate to the throat . . . [H]e is unable to eat when he has these pains, but since he has been on methadone, he has gained 20 pounds and the pain is under good control." The examiner noted that the Veteran denied nausea, vomiting, or regurgitation. In a March 2003 letter, Dr. L.A. indicated the Veteran suffers from achalasia and chest discomfort. He noted the Veteran must go through several "maneuvers" in order to swallow. Dr. L.A. further stated that the Veteran "last underwent upper endoscopy by myself in July 2002. At that time, he did have just some minimal inflammation in his lower esophagus. Biopsies were consistent with reflux esophagitis. It is unclear as to the etiology of his pain as to whether or not this is just esophageal spasm versus post-op discomfort." In a February 2005 letter, Dr. L.A. noted the Veteran's symptoms of worsening heartburn and chest pains. In a September 2007 statement, the Veteran described the functional impact of his esophageal symptoms; specifically, "nowadays I sit around at home because I'm afraid that any small gesture, like bending down too fast, will give me severe chest pains, even though I take the strongest pain medication on the market." Pursuant to the Board Remand, the Veteran was afforded a VA examination as to his residuals of balloon dilations of the esophagus in November 2011. After examination of the Veteran and review of the claims file, the examiner diagnosed him with esophageal stricture. The examiner noted that the Veteran currently "complains of episodic chest pains, they occur about three times a day, lasting for 15 to 20 minutes, relieved by his pain medications and food. He describes burning chest pain, states the pain 'pulls on my throat.'" The examiner noted that the Veteran sees a private pain management physician who has prescribed methadone to treat his symptoms. He also sees a private gastroenterologist who recommends follow up once every two years for upper endoscopy. The Veteran reported that his last endoscopy was one year ago, but it did not show any new changes or findings, and additional medical follow-up was not recommended. The examiner further indicated that there is no history of gastrointestinal bleeding and the Veteran denies weight loss or dysphagia. The Veteran did not report "any symptoms that might be consistent with 'disturbances of motility, actual partial obstruction, reflex disturbances, occasional episodes of colic pain, nausea, constipation/diarrhea, or abdominal distention." The examiner noted that the Veteran suffers from pyrosis and substernal arm or shoulder pain occurring four or more times per year and averaging a duration of less than one day. However, the Veteran did not endorse recurrent epigastric distress, dysphagia, reflux, regurgitation, sleep disturbance, anemia, weight loss, nausea, vomiting, hematemesis, or melena. The examiner noted that the Veteran's chest pains "are atypical, nonspecific, and may be related to a variety of diseases and conditions." Accordingly, the medical evidence of record demonstrates that the Veteran's residuals of balloon dilations of the esophagus are manifested by pyrosis and chest pain including substernal discomfort. Thus, in resolving all reasonable doubt in favor of the Veteran, the Board finds that his residuals of balloon dilations of the esophagus has more nearly approximated a 10 percent disability since September 17, 1996, when compensation became effective. The Board therefore finds that he exhibited two or more symptoms as identified under DC 7346, substernal pain and pyrosis contemplated by the rating schedule. Thus, a higher 10 percent rating is warranted for the entirety of the appeal period. However, the Board finds that a rating in excess of 10 percent is not warranted at any time during the appeal period. Specifically, the Veteran has consistently denied, and there is no objective evidence to show, that his residuals of balloon dilations of the esophagus has caused dysphagia or regurgitation during the appeal period, two symptoms necessary for a higher 30 percent rating. To this end, the Board recognizes that the Veteran complained of difficulty swallowing at the October 1997 RO hearing as described above. However, a review of the transcript and of the medical evidence of record demonstrates that the Veteran was referring again to the chest pain which extended to his throat, as opposed to dysphasia. Moreover, there is no indication that his digestive symptoms result in considerable impairment of health as no such finding has been made on VA examination. Additionally, there is no evidence of material weight loss, metamesis, melena, or anemia during the appeal period. Thus, a rating in excess of 10 percent is not warranted in this case for residuals of balloon dilations of the esophagus at anytime during the pendency of the appeal. The Board has looked at all other possible Diagnostic Codes to rate the residuals of balloon dilations of the esophagus, but finds no basis to assign an evaluation greater than ten percent. 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 Veteran's residuals of balloon dilations of the esophagus manifested by chest pains and acid reflux have 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 epigastric symptoms have had some impact on the Veteran's occupational functioning, 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 compensated 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). Here, the very problems reported by the Veteran are contemplated by the criteria discussed above. 38 C.F.R. §§ 4.10, 4.40. Thus, 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 this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the evidence reflects that his symptoms have remained relatively constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. ORDER An initial disability rating of 10 percent, but no higher, for residuals of balloon dilations of the esophagus manifested by chest pains and acid reflux is allowed, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ THOMAS J. DANNHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs