Citation Nr: 1313161 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 05-00 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 30 percent for celiac sprue. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned in February 2010. A transcript of the hearing is of record. The issue remaining on appeal was adequately explained to her and the submission of evidence which she may have overlooked and which would be advantageous to her position was suggested. See 38 C.F.R. § 3.103(c) (2012). This case was initially before the Board in October 2011 when claims for entitlement to service connection for lupus, pleurisy, esophageal abnormalities, and oral ulcers were granted. Claims for service connection for retrosternal pain, chronic fatigue, arthritic pain, fibromyalgia, positive strand DNA, positive ANA, serositis, dry cough and photosensitivity were denied. The Veteran's claim for an increased rating for celiac sprue was remanded so that additional private treatment records could be obtained and the Veteran could be afforded a VA examination. In October 2011, the Appeals Management Center (AMC) sent the Veteran a letter requesting information regarding medical treatment for her condition, additionally the Veteran was provided a VA examination in December 2011. The Board finds that the requested development has been completed. The Veteran, in part, appealed the October 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the parties (VA and the Veteran) determined that a remand was warranted. A Joint Motion for Remand was granted by an order of the Court in June 2012. Essentially, the Joint Motion for Remand directs the Board to refer a claim for service connection for arthralgia due to service-connected lupus. Accordingly, the Board refers this claim. The issue of entitlement to service connection for arthralgia, to include as secondary to lupus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT Throughout the rating period, the Veteran's celiac sprue has been rated at the maximum schedular rating available for irritable colon syndrome; a referral for an extraschedular evaluation is not warranted. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for celiac sprue have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.114, Diagnostic Codes (DCs) 7319-6350 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA's duty to notify has been satisfied. The Veteran was notified via letter dated in January 2005 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. In November 2011 the Veteran was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. As a matter of law, remedial action prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the Veteran was provided the November 2011 notice, the matter was readjudicated in a September 2012 supplemental statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of her case to the Board. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's service treatment records. The Veteran also submitted personal statements in support of her appeal and private treatment records. Although additional outstanding private treatment records were identified at her February 2010 hearing and the Board remanded the claim, in part, to obtain these records, the Veteran did not provide any additional information regarding these records as to warrant further VA assistance. The Board has also reviewed the Veteran's Virtual VA claims file. The Veteran was afforded VA examinations in May 2003 and December 2011. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's celiac sprue since the December 2011 VA examination. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the claim. VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate her disabilities under the applicable rating criteria. The evidence is adequate for a determination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill a VA duty in the development of the claim. II. Increased Rating Disability rating are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified 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. For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2012). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2012). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Rating of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). Disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. Esteban v. Brown, 6 Vet. App. 259 (1994). A separate rating must be based upon additional compensable disability. If the Veteran does not meet the criteria for a compensable rating under either code, there is no additional disability for which a rating may be assigned. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (assignment of 0 percent ratings is consistent with requirement that service connection may be granted only in cases of existing disability). The Veteran's celiac disease is currently rated at 30 percent disabling by analogy under 38 C.F.R. § 4.114, Diagnostic Codes (DCs) 7319-6350 (2012). The Board parenthetically notes that a November 2011 rating decision, effectuating an October 2011 Board grant, recently awarded the Veteran a separate 60 percent rating for her lupus under DC 6350. The Board also notes that in addition to being separately rated for her lupus (DC 6350), the Veteran is additionally in receipt of disability ratings for esophageal abnormalities secondary to her service-connected lupus (DCs 7399-7305), pleurisy associated with lupus (DCs 6899-6845), oral ulcers associated with lupus (DC 7344), and a malar rash associated with lupus (DCs 7899-7816). There is no indication the assigned ratings for the Veteran's other service-connected disabilities are inadequate. It is significant to note that under applicable regulations ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other, but rather a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher evaluation when warranted by the overall severity. See 38 C.F.R. § 4.114. Although the Board is unable to reconcile the November 2011 rating decision which established a 10 percent rating under DC 7305 in combination with the previously established rating under DC 7319, the evidence does not indicate an esophageal disability that is moderate with recurring episodes of severe symptoms such that recognition of the disability rated under DC 7305, if considered to be predominant, may be assigned a rating in excess of 30 percent. Thus, the Board finds the Veteran is not prejudiced by appellate review without additional development. The Board further finds that, other than addressed in the referred issue in the introduction section in this decision, all potentially service-connected symptoms appear to have been adequately attributed to a service-connected disability and there is no indication the Veteran has submitted a timely notice of disagreement with any other rating decision. See Mittleider v. West, 11 Vet. App. 181 (1998). The assigned 30 percent disability rating in effect for the Veteran's celiac sprue during the entire period on appeal is the maximum schedular rating available under DC 7319. Accordingly, a schedular disability rating higher than 30 percent for celiac sprue is not available under DC 7319. Hence, to establish entitlement to an increase the evidence must show it is warranted under alternate criteria, or on an extraschedular basis. Other applicable codes for the digestive system include DC 7307, 7328, and 7346. Under DC 7307 a 10 percent evaluation is warranted for chronic gastritis with small nodular lesions, and symptoms. A 30 percent evaluation is warranted for chronic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent evaluation is warranted for chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307. Under DC 7328, a 20 percent rating is warranted for resection of the small intestine with symptomatic residuals including diarrhea, anemia and inability to gain weight. A 40 percent rating is warranted for definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings including definite weight loss. Finally, a 60 percent rating is warranted for marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings including material weight loss. Under DC 7346 a 10 percent evaluation is warranted when there are two or more of the symptoms for the 30 percent rating of less severity. A 30 percent evaluation is warranted hiatal hernia when there is persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent evaluation contemplates a level of impairment, which includes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The pertinent evidence shows the Veteran underwent a May 2003 VA examination which included a diagnosis of controlled celiac disease. Symptomatology warranting a high rating, including with elevation as the predominant disability, under the above listed alternative diagnostic codes was not demonstrated. The Veteran's celiac disease was once again evaluated in a December 2011 VA examination. The Veteran reported that her celiac disease had been stable on a gluten free diet. She reported chronic constipation, with the need for dietary changes, water intake and activity to overcome this problem. It was also noted that she had daily abdomen distention and cramping. She also reported occasional episodes of bowel disturbance with abdominal distress. The Veteran denied any weight loss, malnutrition or serious complications attributable to her intestinal condition. She reported missing work sometimes to go to the doctor. An evaluation of her esophageal disability indicated only infrequent episodes of epigastric distress. The Board has additionally reviewed private treatment records submitted by the Veteran. Various private treatment records reflect complaints associated with her esophageal disorder. However, as noted above, the Veteran is separately rated for these manifestations as secondary to her service-connected lupus, which are issues not presently on appeal. The evidence of record does not reflect findings sufficient to warrant separate or higher alternative ratings for the Veteran's celiac sprue. In sum, after a careful review of the evidence of record, the Board finds that a rating in excess of 30 percent for celiac sprue is not warranted. The Board has considered the Veteran's statements regarding increased symptomatology. VA must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Veteran is competent to report that which she can experience or observe. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board acknowledges the Veteran's belief that her symptoms are of such severity as to warrant a higher rating for her celiac sprue; however, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of her disability. Thus, evidence warranting an increased rating based upon celiac sprue symptomatology has not been established, either through medical or lay evidence. Whether the Veteran is entitled to a referral for an extraschedular rating is a component of a claim for an increased rating claim. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, service connection is established for several other service-connected disabilities; however, the Court has held that extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is to be solely a disability-by-disability basis rather than on the combined effect of a veteran's service-connected disabilities. See Johnson v. Shinseki, ___Vet. App.___, No. 10-1785, 2013 WL 1224810 (Vet. App. Mar. 27, 2013). The Court has also clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination as to whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. Although the Veteran is rated at the highest schedular rating, the Board finds that her symptomatology is adequately contemplated by the rating criteria. Moreover, the evidence does not reflect that the Veteran's celiac sprue has caused marked interference with employment or frequent periods of hospitalization. In short, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Consequently, referral under 38 C.F.R. § 3.321 is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible for her celiac sprue, she has not submitted evidence of unemployability, or claimed to be unemployable. In fact, a September 2002 private treatment record reflected that the Veteran worked full time as an aerospace engineer. She testified at her February 2010 hearing that she was working. The evidence indicates she has missed time from work for medical appointments, but does not reflect any material changes in her employment status. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 30 percent for celiac sprue is denied. ____________________________________________ T. L. DOUGLAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs