Citation Nr: 1313012 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 06-19 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left foot and toes disability, to include as secondary to service-connected diabetes. 2. Entitlement to an increased rating for hiatal hernia with diverticulitis, currently rated 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to December 1957 and from October 1961 to July 1981. These matters come before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this case in December 2009 and February 2012 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a left foot and toes disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hiatal hernia with diverticulitis has been manifested by pyrosis and regurgitation (both controlled by medication), but such symptoms are not productive of considerable impairment of health. 2. The Veteran is currently service-connected for degenerative changes cervical spine (20 percent), diabetes (20 percent), hypertension (10 percent), hiatal hernia with diverticulitis (10 percent), sinusitis (0 percent), status post thoracotomy for right upper lung nodule (0 percent), hyperplasia of right tongue (0 percent), left testicular atrophy with Peyronie's disease (0 percent), post surgical scars for cyst of skull, neck, back, left upper lip, chin, and armpits (0 percent), and osteoarthritis, dip joint, left hand, fifth finger (0 percent). 3. The evidence of record demonstrates that the Veteran is not precluded from maintaining substantially gainful employment solely as a result of the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for hiatal hernia with diverticulitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R §§ 3.321, 4.1-4.7, 4.114, Diagnostic Code (DC) 7346, 7329 (2012). 2. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). By letters dated June 2008, December 2009, and July 2012, the Veteran was notified of the information and evidence necessary to substantiate his claims. VA told the Veteran what information he needed to provide, and what information and evidence that VA would attempt to obtain. It equally deserves mentioning that the RO issued that June 2008 VCAA notice letter prior to adjudicating the Veteran's claim in September 2008, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). Applying the above analysis to the present case, the Veteran does not contend, nor does the evidence show, any notification deficiencies with respect to content that have resulted in prejudice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has also been afforded VA examinations in September 2008, July 2011 and August 2012. The Board finds that the examinations were adequate to allow proper adjudication of the issues on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Additionally, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is service-connected for hiatal hernia with diverticulitis, currently evaluated as 10 percent disabling under 38 C.F.R. § 4.114, DC 7346. Under DC 7346, a 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Lastly, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. In a July 2008 statement, the Veteran stated that he developed a severe diarrhea condition after his colostomy surgery and the removal of 14 inches of his colon due to diverticulitis. The Veteran was afforded a VA examination in September 2008. The Veteran reported that his reflux disease is stable on medication once daily. The Veteran reported that his last esophageal dilatation was in the 1980s and his last colonoscopy was in 2006. The Veteran stated that he uses a suppository after every bowel movement and has 3-4 bowel movements daily. Regarding the Veteran's medical history, the examiner noted no history of hospitalization or surgery relating to the esophagus, no trauma to the esophagus, no history of esophageal neoplasm, no nausea or vomiting associated with esophageal disease, and no dysphagia. The examiner did note a history of esophageal distress controlled by medication, but which happened daily and was accompanied by pain without medication; a history of heartburn or pyrosis which is stable on medication, but daily without; a history of regurgitation which is daily without medication; a history of hematemesis or melena due to another condition (not related to this claim); and a history of esophageal dilation, for which the Veteran has had no esophageal dilations in the past 12 months. On examination, the examiner found the Veteran's abdomen soft, round, nontender, with no palpable masses, no hepatosplenomegaly, and bowel sounds were present. The examiner provided a diagnosis of gastroesophageal reflux disease (GERD) and hiatal hernia, which are stable, and which have no effects on his usual daily activities. VA treatment records were reviewed, which generally noted stable esophageal reflux with no flare-ups. A November 2008 record noted esophageal reflux with no flare-ups and chronic diarrhea secondary to a previous partial colectomy. Private treatment records were also reviewed. A March 2010 private treatment record noted the Veteran underwent a colonoscopy, esophagogastroduodenoscopy, which found gastritis, a hiatal hernia, diverticulosis, gastric polyp, and internal hemorrhoids. The Veteran was advised to continue his current medications. In April 2012, an examination revealed no food intolerance, abdominal pain, nausea, vomiting, bloating, diarrhea, constipation, melena, or hematochezia. On VA examination in August 2012, the examiner reviewed the Veteran's claims file and medical history and noted diagnoses of GERD and hiatal hernia. The examiner noted that the Veteran is taking continuous medication for the diagnosed conditions. On examination, the examiner reported that the Veteran did not have an esophageal stricture, spasm of the esophagus or an acquired diverticulum of the esophagus. The examiner stated that the Veteran's esophageal conditions do not impact his ability to work and do not cause functional impairment to which disability is attributable, to include securing and following gainful employment. Regarding the Veteran's intestines, the examiner noted the Veteran underwent a resection of the large intestine due to diverticulitis, with no residuals of this condition. Continuous medication is not required for this condition, nor does the Veteran have any signs or symptoms attributable to any intestinal surgery. The examiner noted no weight loss or inability to gain weight attributable to intestinal surgery and no interference with absorption and nutrition. The Veteran's condition did require a colostomy, for which the Veteran underwent a reversal on April 2000. The Veteran did not have a fistula. There were no other pertinent physical findings. The examiner noted that the Veteran's intestinal surgery did not impact his ability to work, nor did it cause functional impairment to which disability is attributable, to include securing and following gainful employment. As for symptoms, the examiner noted that the Veteran did not have epigastric distress, dysphagia, pain, vomiting, hematemesis, melena, or anemia. As for weight loss, the examiner noted this was not due to acid reflux, hiatal hernia, or diverticulitis, but was due to controlling diet for diabetes and exercise. Further, this is not accompanied by substernal, arm or shoulder pain. The examiner did note that the Veteran experienced pyrosis and regurgitation when lying down, only if he forgets to take his medication. The examiner stated though that these symptoms are also not accompanied by substernal, arm or shoulder pain. The examiner opined that the Veteran's hiatal hernia with diverticulitis does not impair his overall health, and further, that there is no documentation to show that either condition has caused symptoms since 2000 and the diverticulitis last occurred per documentation in 1999. In this case, the evidence shows that the Veteran experiences symptoms including pyrosis and regurgitation without taking his medication, but that these symptoms are under control with medication. None of the evidence indicates that his disability picture is productive of symptoms approaching considerable impairment of health, which is required for a higher 30 percent rating. Upon physical examination by VA in 2008 and 2012 (and in VA treatment records), it was essentially noted that the Veteran's condition was stable with medication. The August 2012 VA examiner specifically noted no epigastric distress, dysphagia, pain, vomiting, hematemesis, melena, or anemia. Thus, the Veteran's symptomatology more nearly approximates the criteria set forth under DC 7346 for a 10 percent evaluation, which is currently assigned. The Board has also evaluated this disability under DC 7329 for resection of the large intestine, however this code will also not produce a rating in excess of 10 percent. Under DC 7329, a 10 percent rating is warranted for resection of the large intestine with slight symptoms. A 20 percent rating is warranted for moderate symptoms, and a 40 percent rating is warranted for severe symptoms, objectively supported by examination findings. Here, the August 2012 VA examiner noted that the Veteran underwent a resection of the large intestine due to diverticulitis, but that the Veteran has no residuals of this condition and that continuous medication is not required for this condition. The examiner further stated that the Veteran does not have any signs or symptoms attributable to any intestinal surgery. Thus, the Veteran's disability picture does not more closely approximate a rating in excess of 10 percent under DC 7329. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's disability on appeal. 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe his disability level and symptomatology and provides for more severe symptoms than shown by the evidence during the period in question; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. Accordingly, considering the above, the preponderance of the evidence is against a finding that a higher rating is warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Should the Veteran's disability increase in severity in the future, he may always advance a claim for an increased rating. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service- connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Court has held that in determining whether the Veteran is entitled to a total disability rating based upon individual unemployability neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. VA regulations provide that in exceptional cases where the schedular evaluations are found to be inadequate, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case 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). A total rating for compensation purposes based on unemployability will be granted when the evidence shows that the Veteran, by reason of his service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. Here, the Veteran has a college education and worked with computers after leaving service, from 1981-1989. The Veteran stated that he retired, not due to medical reasons, but because he had enough years in service. Following retirement, he reported doing volunteer work, which he had to stop due to bowel movement problems. The record shows that the Veteran is currently service-connected for degenerative changes cervical spine (20 percent), diabetes (20 percent), hypertension (10 percent), hiatal hernia with diverticulitis (10 percent), sinusitis (0 percent), status post thoracotomy for right upper lung nodule (0 percent), hyperplasia of right tongue (0 percent), left testicular atrophy with Peyronie's disease (0 percent), post surgical scars for cyst of skull, neck, back, left upper lip, chin, and armpits (0 percent), and osteoarthritis, dip joint, left hand, fifth finger (0 percent). Thus, the Veteran does not meet the rating criteria outlined above for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). Notwithstanding, the probative question in TDIU claims is whether service-connected disabilities alone preclude a claimant from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment, and, as noted above, is generally shown when a Veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Based on a review of the record, the Board finds that a TDIU rating is not warranted in this case. In this regard, the Board notes that in an August 2012 VA examination report, the examiner, based on a review of the medical records, reported history and objective examination, opined that the Veteran's service-connected disabilities did not prevent him from obtaining and maintaining gainful employment. Further, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. He may sincerely believe that he is unemployable due to his service-connected disabilities, but as a lay person, he is not competent to render a medical diagnosis or an opinion concerning unemployability. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Further, the most probative evidence (the VA examiner's opinion) indicates that the Veteran is not unemployable due to his service-connected disabilities. There is no evidence to contradict this opinion. Under these circumstances, a TDIU rating is not warranted. ORDER An increased evaluation in excess of 10 percent for hiatal hernia with diverticulitis is denied. Entitlement to a TDIU is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue. The Board also notes that the Court has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand order." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. The Veteran asserts that service connection for a left foot/toes disability, as secondary to his service-connected disabilities, is warranted. The Board's February 2012 remand ordered that the Veteran be afforded another VA examination, in part, for the VA examiner to acknowledge and discuss the notation in the service treatment records that the Veteran's foot pain sounded "arthritic by description." While the examiner discussed arthritis in his opinion, he did not specifically address this record and discuss its implications. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO shall request that the August 2012 VA examiner review the claims file, specifically the May 1979 STR which noted foot pain that "sounded arthritic in nature," and provide an addendum to the previous medical opinion. The examiner should opine as to the implication, if any, that this notation has on the Veteran's claim for service connection, to include as secondary to his service-connected disabilities. [If the August 2012 VA examiner is unavailable or unable to provide the addendum sought, the Veteran's claims file should be forwarded to another appropriate examiner.] 2. When the development requested has been completed, the case shall again be reviewed by the RO/AMC. If the benefit sought is not granted, the Veteran shall be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs