Citation Nr: 1316092 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-42 300A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to restoration of a 30 percent evaluation erosive gastritis with gastoesophageal reflux disease (GERD) from May 1, 2009, including the question of whether reduction to 10 percent was proper. ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to March 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by which the RO reduced the Veteran's disability evaluation from 30 to zero percent effective May 1, 2009 for service-connected erosive gastritis with GERD. By June 2011 rating decision, the RO increased the evaluation for erosive gastritis with GERD to 10 percent effective May 1, 2009. FINDINGS OF FACT 1. In an October 2008 rating decision, the RO proposed to reduce the Veteran's rating for erosive gastritis with GERD to zero percent (later amended to 10 percent) based on improvement of the disability; the Veteran was informed of the proposal by a letter dated in October 2008, and was afforded a period of 60 days in which to submit additional evidence. 2. In a February 2009 rating decision, the evaluation for erosive gastritis with GERD was reduced to zero percent (later amended to 10 percent), effective May 1, 2009, based on improvement of the disability. 3. The evidence of record at the time of the February 2009 rating decision reducing the rating for the Veteran's erosive gastritis with GERD shows that the disability had improved and that the disability was essentially asymptomatic with medication. CONCLUSIONS OF LAW 1. The reduction of the 30 percent rating for erosive gastritis with GERD from May 1, 2009 was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.343, 3.344 (2012). 2. The criteria for a restoration of a 30 percent disability rating for erosive gastritis with GERD have not been met for any period from May 1, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.3, 4.7, 4.114, Diagnostic Code 7307 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Furthermore, the regulations provide that a veteran is to be notified of the contemplated action (reduction or discontinuance) and given detailed reasons therefore, and is to be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran is also to be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. 38 C.F.R. § 3.105(e), (h). As set forth in greater detail below, the Board finds that the RO provided the Veteran with appropriate notice of the proposed reduction of the rating of service-connected erosive gastritis with GERD. With regard to the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA treatment records and VA authorized examination reports. The Veteran was afforded VA examinations in September 2009, February 2011, and in February 2013 to evaluate her service-connected erosive gastritis with GERD. The Board finds that, cumulatively, these examinations are adequate for rating purposes as they were performed by medical professionals, were based on a thorough examination of the Veteran, reported findings pertinent to the rating criteria for disabilities of the digestive system, and included an assessment of degree of occupational impairment and impairment on activities of daily living. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Propriety of the Reduction In October 2008, the RO proposed decreasing the Veteran's disability rating for service-connected erosive gastritis with GERD from 30 percent to zero percent. The Veteran was notified of the RO's intent to reduce the 30 percent evaluation for service-connected erosive gastritis with GERD in an October 2008 letter. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The regulations provide that the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested or the veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. Id. The Board finds that the RO complied with the procedural requirements for reducing the Veteran's disability rating for erosive gastritis with GERD, to include providing proper notification of the proposal to reduce the disability rating and giving the Veteran the opportunity to submit evidence. The Veteran was notified of the RO's intent to reduce the 30 percent evaluation for service-connected erosive gastritis with GERD in an October 2008 proposed reduction, which was sent to the Veteran by letter dated that month. The Veteran was afforded an opportunity to have a predetermination hearing and was given at least 60 days in which to present additional evidence. 38 C.F.R. §§ 3.105(e), (i). Final action to reduce the 30 percent evaluation to zero percent was taken pursuant to 38 C.F.R. § 3.105(e) in February 2009. The Veteran was informed of this decision by letter dated in February 2009. The reduction was made effective beginning May 1, 2009. Based on a review of this procedural history, the Board finds that the RO complied with all of the requirements of 38 C.F.R. § 3.105(e). The Veteran was notified of her rights. She was given an opportunity for a hearing and time to respond. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). The Veteran has not contended that these provisions were not complied with. Therefore, the Board finds that all of the evidence of record is in favor of a finding that the reduction of service-connected erosive gastritis with GERD from 30 percent to 10 percent (as later partially restored in a June 2011 rating decision) was procedurally proper. As such, the Board will address the propriety of the reduction on its merits. Restoration of 30 Percent Rating The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413 (1993). With respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. As to the above, under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. Here, since the 30 percent evaluation was granted in January 2002, effective March 26, 2001, and reduced to 10 percent effective May 1, 2009, it had been in effect for the requisite period of time. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in this instance. Rating reductions necessarily involve a comparative analysis of the evidence utilized to establish the level of disability prior to the proposed reduction, and the evidence which serves as the basis for the proposed reduction. The evidence of record must demonstrate improvement in the level of disability and that such improvement will likely continue. A reduction may not be based solely on a determination that the schedular criteria for the lower rating are more appropriate. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a), (c). As discussed above, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying her of her rights and giving her the requisite time periods request a hearing and respond. By January 2002 rating decision, the RO granted service connection for erosive gastritis with GERD to which is assigned a 30 percent evaluation effective March 26, 2001 under Diagnostic Code 7307. 38 C.F.R. § 4.114. Diagnostic Code 7307 pertains to gastritis, hypertrophic (identified by gastroscope). Under that diagnostic code, chronic gastritis is assigned a 60 percent rating with severe hemorrhages or large ulcerated or eroded areas, a 30 percent rating with multiple small eroded or ulcerated areas and symptoms, and a 10 percent rating with small nodular lesions and symptoms. Id. On September 2008 VA medical examination, the Veteran indicated that she was an unemployed biomedical technologist; there was no impediment to working. She denied physician prescribed bed rest in the previous 12 months and indicated that she was fully capable of the activities of daily living. She used Prilosec once a day to control symptoms. The Veteran indicated that heartburn, epigastric discomfort, reflux, nausea, and vomiting had all resolved with the initiation of 20 milligrams a day of Prilosec and that she was essentially asymptomatic with only occasional reflux. The Veteran's diet was not limited with the exception of cucumbers, which exacerbated symptoms. The Veteran's stomach was asymptomatic with Prilosec. An upper gastrointestinal study revealed probable Barrett's esophagus with a probable tiny 5 millimeter area of ulceration. The examiner diagnosed GERD with an esophageal ulcer. The examination report indicated that the Veteran weighed 154 pounds. On February 2011 VA examination, the Veteran reported gastrointestinal symptoms throughout the years despite taking medication. There was occasional nausea and vomiting with associated discomfort from the upper abdomen to the mid chest. Her symptoms were mostly postprandial and at night with nausea, regurgitation, and occasional vomiting. There was no dysphagia. She was taking Omeprazole regularly to control her symptoms. The Veteran's weight was stable, and her diet was normal although she avoided certain fools such as peppers and onions. With medication, the Veteran did not have nausea or vomiting; these symptoms were present only when she forgot to take the medication. The examiner diagnosed GERD controlled on Omeprazole taken once daily. The examiner indicated that there was no evidence of an ongoing problem with gastritis on the 2008 endoscopy or by present symptoms. Thus, the examiner concluded that gastritis was no longer present. There were no complications associated with GERD and no anemia. The liver and kidney function tests of record were within normal limits. The disability, according to the VA examiner, was not one that would have any significant impact upon ordinary occupational or leisure activities. On February 2013 VA medical examination, the examiner diagnosed, in pertinent part, GERD. The Veteran had to take medication continuously for that disorder. The Veteran reported almost constant nausea with occasional vomiting and substernal chest pain. The Veteran described persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbances four or more times a year, anemia, weight loss (163 pounds to 144), nausea four or more times a year, and periodic vomiting. The Veteran's ability to work was hindered, according to the examiner, because she got reflux when she bent over and because nausea reduced stamina. The examiner indicated that the Veteran's transient anemia coincided with her ongoing bout of Epstein-Barr virus (EBV) and currently with the resurgent GERD symptoms. As to erosive gastritis, the condition was controlled with Omeprazole taken in the morning. The examiner indicated such associated symptoms as weight loss and nausea. An October 2012 computed tomography scan revealed no ulcers. The Veteran's ability to work, according to the examiner, was hampered by the same symptoms having an impact upon employment associated with GERD. The Veteran's disability appears to be worsening. The Board notes that the period of the reported weight loss is not shown. However, she weighed 154 pounds on VA examination in September 2008, and weight gain was not reported. Thus, over the course of this appeal, the Veteran's weight fluctuated by only 10 pounds and not 19 pounds as indicated in the February 2013 VA examination report. As stated, the reduction in the percentage evaluation was made effective on May 1, 2009. Because the evaluation had been in effect for five years or more, compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) is required. In considering the propriety of a reduction, the evidence available to the RO at the time the reduction was effectuated must be considered, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). As clear from the foregoing recitation of the evidence, the Veteran has gone from essentially denying symptomatology to reporting multiple symptoms. A close review of the evidence, however, shows that most of the symptoms are infrequent and occur only when she fails to take her daily medication. As well, the Board is cognizant of the reported anemia. That condition, however, is due to the Veteran's EBV and only subsequently was associated with GERD, which the Board notes is well controlled with medication. Thus, the Board finds that GERD, when treated properly, is not productive of the Veteran's anemia, especially because the record does not reflect regular lack of compliance with medication. The facts herein reflect that the Veteran's erosive gastritis and GERD are very well controlled with medication. Thus, while there have been symptoms such as nausea and reflux, the overall disability picture is not one of regularly symptomatic erosive gastritis with GERD with multiple small eroded or ulcerated areas with symptoms without which a 30 percent disability rating is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7307. In summary, the record demonstrates that the procedural requirements for a reduction in rating have been met as specified under the provisions of 38 C.F.R. § 3.105(e), and the preponderance of the competent findings substantiates that the reduction in rating from 30 to 10 percent for erosive gastritis with GERD was proper. The medical evidence on file at the time of the RO's decision to reduce the rating corresponds to this determination. Symptomatology consists primarily of infrequent manifestations associated with lack of compliance with effective medication. Under no circumstance is a 30 percent evaluation available for the symptoms and manifestations reported by the Veteran under Diagnostic Code 7307. Therefore, the appeal for restoration of a 30 percent rating for the disability at issue must be denied. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of- the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The reduction in the evaluation for erosive gastritis with GERD from 30 to 10 percent effective May 1, 2009 was proper ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs