Citation Nr: 1315607	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  10-02 317	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating for gastritis.

2.  Entitlement to an initial rating higher than 10 percent for residuals of a cerebral vascular accident (CVA), i.e., stroke.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Appellant, his wife, and Dr. C


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1964 to June 1987.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran, his wife, and Dr. C since have testified in support of these claims at a hearing at the RO in August 2010 before a local Decision Review Officer (DRO).  The transcript of the hearing has been associated with the claims file.

The Board remanded these claims in October 2012 to further develop them, including especially by obtaining outstanding treatment records and having the Veteran undergo another VA compensation examination reassessing the severity of these disabilities.  To this end, he was contacted in November 2012 and asked to submit the necessary release form (VA Form 21-4142) authorizing VA to obtain the additional confidential private treatment records, including from Drs. K and C and concerning a gastrointestinal biopsy and endoscopy in August 2010, which he had cited as needing to be obtained.  He did not respond to this request, however.  The duty to assist him with his claims is not a one-way street.  If he wants help in developing his claims, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

He also had the requested VA compensation examination in January 2013.  And, at least as concerning his claim for a higher rating for his gastritis, the Board finds there was compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance).  The Board therefore is going ahead and deciding this claim.

But as concerning the additional issue of his entitlement to a higher rating for the residuals of his CVA, the Board finds that still further development of this remaining claim is required, so the Board is again remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC.

A February 2013 decision that the AMC has issued since the Board's prior remand granted higher ratings for the peripheral neuropathy affecting the Veteran's upper and lower extremities - retroactively effective as of January 9, 2013.  And although the AMC listed these additional claims in the most recent supplemental statement of the case (SSOC) that it concurrently issued in February 2013, that is, in addition to the claims for higher ratings for the gastritis and for the residuals of the CVA, denying even higher ratings for the bilateral upper and lower extremity peripheral neuropathy, the Veteran since has indicated in an April 2013 statement (on VA Form 21-4138) that he agrees with the evaluation and percentages assigned as of January 9, 2013.  He therefore withdrew his appeal concerning these disabilities, which, given the effective date he cited, was an apparent reference to the increases in the ratings for his bilateral upper and lower extremity peripheral neuropathy.  So these claims apparently have been resolved to his satisfaction, see 38 C.F.R. § 20.204, therefore leaving only the claims for higher ratings for his gastritis and for the residuals of his CVA as still at issue.


FINDING OF FACT

Since the filing of the claim for service connection for gastritis on January 30, 2008, this condition has been manifested by a submucosal lesion.


CONCLUSION OF LAW

Since receipt of this claim on January 30, 2008, the criteria have been met for a higher 10 percent rating, though no greater rating, for the gastritis.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7307 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

In deciding this claim for a higher rating for the gastritis, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).


Prior to the initial rating decision in this appeal, so in the preferred sequence, a February 2008 letter informed the Veteran of all five elements of a claim of entitlement to service connection, those being:  1) Veteran status, 2) existence of a disability, 3) a relationship or correlation between the disability and his military service, but also concerning the "downstream" 4) disability rating, and 5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  See, too, Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  The letter gave examples of the types of evidence he could submit in support of his claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

It is important to keep in mind that this claim arose in the context of him trying to establish his underlying entitlement to service connection for his gastritis.  So the VCAA notice provided in February 2008 addressed his claim in this specific context.  This claim since has been granted in the December 2008 RO decision precipitating this appeal.  And the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, once service connection is granted, the claim, as it arose in its initial context has been substantiated, indeed proven, so the initial intended purpose of the notice served such that § 5103(a) notice is no longer required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Sutton v. Nicholson, 20 Vet. App. 419 (2006).  In this situation, then, VA is not required to provide additional VCAA notice concerning the "downstream" disability rating and effective date elements of the claim.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 
8-2003, 69 Fed. Reg. 25180  (May 5, 2004).  Rather, according to the holding in Goodwin and these other precedent cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved.  The RO sent the Veteran this required SOC addressing the "downstream" disability rating element of his claim.  The RO/AMC also since has provided him an SSOC. The SOC and SSOC included citation to the applicable statutes and regulations and contained discussions of the reasons and bases for not assigning a higher initial rating.  The Veteran therefore has received all required notice concerning his "downstream" claim for a higher initial rating for his gastritis.

VA's additional duty to assist under the VCAA includes helping the claimant to obtain potentially relevant records, including service treatment records (STRs) and other pertinent records of evaluation and treatment since service, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

The Veteran's service treatment records (STRs) and post-service VA treatment records are in the file for consideration.  VA also has obtained all private treatment records and associated them with his claims file.  As already alluded to, following the Board's October 2012 remand of this claim, he did not respond to the November 2012 request that he complete and return the necessary release form (VA Form 21-4142) to permit VA to obtain additional records that are confidential.  He has not indicated there are any other outstanding records needing to be obtained.  Accordingly, the duty to assist has been satisfied with respect to obtaining relevant records on his behalf.  See 38 C.F.R. § 3.159(c).

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of his disability.  Green v. Derwinski, 1 Vet. App. 121 (1991).  And where the evidence of record does not reflect the current state of his disability, a VA examination must be performed reassessing the severity of the disability.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).


As the Board directed when remanding this claim in October 2012, he was afforded a VA medical examination most recently in January 2013 reassessing the severity of his gastritis.  This opinion was rendered by a medical professional following a thorough examination and interview of him and review of the claims file.  The examiner obtained an accurate history of this disability and provided a detailed explanation for the opinions concerning its severity.  There is no suggestion there has been a material change in the severity of this disability since that most recent VA compensation examination.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded, especially again, solely because of the mere passage of time since an otherwise adequate VA examination was performed.  VAOPGCPREC 11-95.  See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Therefore, the Board finds the examination adequate for rating purposes.  38 C.F.R. § 4.2  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (indicating that, when VA endeavors to provide an examination for an opinion concerning a claim, even if not statutorily obligated to, VA must ensure the examination and opinion are adequate, else, notify the Veteran why an adequate examination and opinion cannot be provided).

Consequently, the Board finds that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to this claim is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Accordingly, the Board may proceed with appellate review of this claim.

Increased Rating

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in his favor.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods of time based on the facts found during the appeal period.  Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (since extending this practice even to increased-rating claims that do not involve initial ratings, rather, also established ratings).

The Veteran's gastritis is rated under 38 C.F.R. § 4.114, Diagnostic Code 7307.  Under this Diagnostic Code chronic hypertrophic gastritis with small nodular lesions, and symptoms, is rated as 10-percent disabling.  Chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms is rated as 
30-percent disabling.  Chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas is rated as 60-percent disabling.

For the following reasons and bases, the Board finds that a higher 10 percent initial rating, though no greater rating, is warranted retroactively effective from the receipt of the claim for service connection for this condition on January 30, 2008, so for all times at issue.

During an August 2009 VA examination the Veteran reported being treated then currently for gastritis.  He denied any hematemesis, vomiting, nausea, or melena.  See also November 2008 VA examination report.  An August 2009 statement from his private treatment provider noted he was treating the Veteran for gastritis and had been since 2003.  The Veteran was on medications, including proton pump inhibitor therapy for his symptoms.  

During a January 2010 Independent Medical Examination the Veteran was noted to have severe gastritis with a submucosal mass or tumor.  See also September 2004 private treatment record noting gastric mass and January 2003 endoscopy report.  

In a March 2010 statement he indicated he had been using antacids to control his heartburn since service.  He is not service connected for heartburn or gastroesophageal reflux disease (GERD).  See December 2008 rating decision.  During his August 2010 DRO hearing he testified that he took prescription medication to help control his gastritis symptoms.  He also testified that he had a mass in his stomach that he got checked regularly.

During his December 2010 VA examination he reported that he was taking prescription medication for his gastritis symptoms.  He denied a history of hiatal hernia or H-pylori infection.

According to a November 2012 private treatment record he underwent an endoscopic ultrasound that revealed a gastric submucosal nodule.  The evaluating physician noted the lesion measured 19 x 8.4 millimeters and was stable in size when compared to the findings of the previous examination.

Most recently the Veteran had a VA examination for his gastritis and esophageal conditions in January 2013.  The examiner noted the Veteran previously had been diagnosed with gastric leiomyoma in 2009.  The Veteran reported taking prescription medication to help with acid reflux symptoms, including heartburn.  However, the examiner found no evidence of symptoms including anemia, nausea, vomiting, and abdominal pain or incapacitating episodes.  He also ultimately did not diagnose the Veteran with hypertrophic or atrophic gastritis, postgastrectomy syndrome, or vagotomy with pyloroplasty or gastroenterostomy.

Based on the entirety of this evidence, the Board concludes the Veteran's gastritis warrants a higher 10 percent rating, though no greater rating, retroactively effective from the receipt of his claim for this condition on January 30, 2008.

Private treatment records as early as 2004 indicate he had a submucosal mass, or lesion, which was related to his gastritis.  Accordingly, a 10 percent rating is warranted.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve all reasonable doubt regarding the level of his disability in his favor.  The Board concludes that the objective medical evidence and his lay statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 10 percent evaluation.  See 38 C.F.R. § 4.7.

The Board also has considered other potentially applicable Diagnostic Codes.  But the VA examination reports and private treatment records indicate the Veteran is most appropriately rated at the 10-percent level for his gastritis.  As examples, the evidence does not show he has ulcers, postgastrectomy syndrome, stomach or liver injuries, or any other gastrointestinal (GI) disorder that would warrant assignment of an even higher rating.

In addition to the medical evidence, the Board has considered his lay statements in support of his claim.  As a layman, he is competent to report on that as to which he has personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the severity of his gastritis, this determination falls outside the realm or purview of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

A clinician, including the VA compensation examiners, takes into consideration the Veteran's subjective complaints and the results of the objective examination in determining the overall severity of his gastritis.  This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's "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, 1481 (Fed. Cir. 1997).  The opinions of the VA examiners are afforded more probative weight than the Veteran's lay assertions, especially, again, when considering that many of the rating requirements involve consideration of objective, rather than just subjective, findings.  King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue in question).

Overall, then, the Board concludes that the evidence supports no more than a 10 percent rating for the Veteran's gastritis since January 30, 2008.  In making this determination, the Board has considered the benefit-of-the-doubt rule and, indeed, applied it in deciding to increase the rating from 0 to 10 percent.  However, the preponderance of the evidence is against an even higher rating and, therefore, in this additional respect does not apply.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The question of entitlement to an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Here, though, the Board finds no such evidence in this particular instance.  The Veteran's complaints related to his gastritis are considered under the appropriate diagnostic codes.  His primary symptoms are the mass that has been noted on endoscopy.  All of his symptoms are accounted for in the regular schedular rating criteria.  According to 38 C.F.R. § 4.1, 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluation for the service-connected gastritis is adequate, particularly in light of the increase in the rating for this disability from 0 to 10 percent in this decision, referral for an extra-schedular rating is unnecessary.  Thun, supra.  See also Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).



ORDER

A higher 10 percent initial rating, though no greater rating, is granted for the gastritis retroactively effective from January 30, 2008, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

As concerning his remaining claim, the Veteran's CVA residuals are currently rated as 10-percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8008, which pertains to thrombosis of the brain vessels.  10 percent is the minimum rating assignable under this Diagnostic Code.

He most recently had a VA compensation examination in January 2013 reassessing the severity of his CVA residuals.  His residuals included abnormal speech, altered gait, and muscle weakness of his upper and lower extremities.  During the earlier August 2010 DRO hearing the Veteran's physician, Dr. C, also had testified to loss of strength, balance and speech problems as residuals of the CVA.

The AMC recently issued a decision in February 2013 increasing the ratings for the peripheral neuropathy affecting the Veteran's upper and lower extremities, so providing additional levels of compensation for his neurological impairment, to the extent it affects his upper and lower extremities.  This bilateral upper and lower extremity peripheral neuropathy is secondary to his Type II Diabetes Mellitus and consequent stroke.

The Board however believes that VA also needs to consider rating his other CVA residuals under Diagnostic Code 8045 as possibly analogous to residuals of a Traumatic Brain Injury (TBI).  See also 38 C.F.R. §§ 4.20, 4.27.  His currently described symptoms could be rated analogous to TBI residuals.  These can include impairment of his judgment, social interaction, motor activity, and communication.  

As already explained, the Court has held that once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion).  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision").

The Veteran therefore should be provided an additional VA examination, using the TBI residuals criteria, to determine the full extent of his CVA residuals.  

Accordingly, this claim is again REMANDED for the following additional development and consideration:

1.  Schedule the Veteran for a VA Traumatic Brain Injury (TBI) examination by a clinician with appropriate expertise to determine the full extent of the Veteran's CVA residuals.

a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.  

b) The examiner(s) must perform all necessary diagnostic testing and evaluation to determine the full extent of the Veteran's CVA residuals based on the TBI criteria.

c) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.

d) The examiner is advised that, by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the file to the examiner for supplemental comment and rationale.

2.  Then readjudicate this remaining claim in light of this and all other additional evidence.  If this claim continues to be denied, in whole or in part, the Veteran and his representative must be provided another SSOC and given time to respond to it before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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).



______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs