Citation Nr: 1316370 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-00 039A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation greater than 30 percent for gastroesophageal reflux disease (GERD), hiatal hernia, and duodenal ulcer with gastritis. 2. Entitlement to an initial compensable evaluation for Barrett's esophagus. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to November 2005. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously remanded by the Board in February 2013 for additional development. The case is again before the Board for appellate review. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals no records pertinent to the issues on appeal. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's service-connected gastroesophageal reflux disease (GERD), hiatal hernia, and duodenal ulcer with gastritis have been manifested by persistently recurrent epigastric distress, chest pain, and nausea, but not by moderate or severe impairment of health or severe hemorrhage or lacerated or eroded areas of the stomach. 2. For the entire initial rating period, the Veteran's service-connected Barrett's esophagus has more nearly approximated moderate stricture of the esophagus, but has at no time manifested by severe stricture of the esophagus, permitting liquids only. CONCLUSIONS OF LAW 1. The criteria for an increased rating for GERD, hiatal hernia, and duodenal ulcer with gastritis, currently evaluated at 30 percent disabling, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.21, 4.113, 4.114, Diagnostic Codes 7305, 7307, 7346 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial compensable disability rating of 30 percent, but no higher, for Barrett's esophagus have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.20, 4.21, 4.113, 4.114, Diagnostic Code 7203 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a 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. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a September 2005 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. This notice provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The case was last adjudicated in March 2013, and any defect as to timing of notice is harmless, non-prejudicial error. Dingess/Hartman, 19 Vet. App. 473. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, and VA treatment records. As noted, the Veteran's claim was remanded for additional development by the Appeals Management Center (AMC) in February 2013. Additional records were requested and associated with the claims file, and all new evidence was considered in a March 2013 supplemental statement of the case. While the AMC failed to notify the Veteran of the April 2013 response from the VA Records Management Center of their failure to locate any additional records from Scott Air Force Base beyond the January 1994 to March 2007 treatment records already associated with the claims file, the Veteran had already notified VA in a March 2013 letter that he stopped receiving routine care at Scott Air Force Base in 2005; this failure to notify is therefore deemed harmless, non-prejudicial error, as clearly no additional records from that facility could be forthcoming. For the remaining February 2013 remand directives, the Board finds that there was substantial compliance, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of the two evaluations shall be applied, the higher evaluation 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. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 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 extraschedular rating. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Factual Background The Veteran was granted service connection for GERD, Barrett's esophagus, and duodenal ulcer/gastritis in May 2007, with each disability assigned a noncompensable rating (0 percent), effective date December 1, 2005, the day after the Veteran was separated from active duty service. See 38 C.F.R. § 3.400(b)(2) (2012). After the Veteran disagreed with the initial rating assignment, in a September 2012 supplemental statement of the case these issues were granted a combined initial rating of 30 percent. The Board remanded the issues in February 2013 for further development, and in March 2013 the AMC issued a supplemental statement of the case which continued a 30 percent rating for GERD, hiatal hernia, and duodenal ulcer with gastritis and a separate, noncompensable rating for Barrett's esophagus. The Veteran contends that these disabilities warrant a higher initial rating than currently assigned. The Veteran's service treatment records show that his gastrointestinal disorders first began while on active duty. In August 2000 the Veteran was diagnosed with marked gastroesophageal reflux, and in October 2000 the Veteran underwent an esophageal motility study which found that esophageal motility contraction was of low amplitude and that acid reflux frequency and length were consistent with GERD. The Veteran's service treatment records also include numerous references to and follow-up examinations for Barrett's esophagus, including a February 2003 diagnosis of Barrett's esophagus, nonerosive gastritis, and duodenal bulb ulcer. In January 2004 he was also diagnosed with a sliding small hiatal hernia. The Veteran continued to receive occasional treatment at Scott Air Force Base immediately after his separation from service. Tissue testing performed in August 2006 showed squamous and glandular mucosa with focal intestinal metaplasia consistent with Barrett's esophagus and negative for dysplasia. The Veteran's private medical records show that in August 2007 the Veteran reported having difficulty swallowing (dysphagia), abdominal pain, and diarrhea, and in September 2007 the Veteran was diagnosed with duodenitis. The Veteran has also been receiving regular testing and follow-ups for his gastric disorders. Esophagogastroduodenoscopies performed in September 2007, October 2008, October 2010, and January 2013 revealed 2 to 3 centimeters of Barrett's esophagus and normal stomach and duodenum, with gastric mucosa and mild transmucosal chronic inflammation in the esophagus. A November 2007 capsule endoscopy showed normal findings, with no ulcers, lesions, or masses. In a January 2006 VA general examination, the Veteran reported that he takes daily medication to treat chronic GERD, which had also been treated with Nissan fundoplication surgery in the service. He reported that since this surgery he has had no postoperative complications, but does have days where he is unable to eat more than a few bites of food without feeling epigastric discomfort. The examiner noted that the Veteran was also found to have gastritis and an ulceration in the stomach area in service. The Veteran stated that he had undergone some recent weight gain because he was no longer as active. The examiner diagnosed the Veteran with chronic GERD, Barrett's esophagus of the distal esophagus with associated diminished motility, and duodenal ulcer/gastritis, which he noted was "now well handled by chronic Aciphex administration and stabilization of the gastroesophageal junction by virtue of Nissan fundoplication." In June 2012 the Veteran was afforded a VA examination for esophageal conditions. The examiner reviewed the claims file, discussed the Veteran's history of gastric disorders since the 1980s, and noted that he currently has symptoms of persistently recurrent epigastric distress, dysphagia, reflux, substernal arm or shoulder pain, and recurrent nausea four or more times per year lasting less than one day. The Veteran was diagnosed with GERD, Barrett's esophageal metaplasia, and recurrent duodenal ulcer. The examiner noted that the Veteran has a mild esophageal stricture, which causes mild dysphagia with food getting hung up in the distal esophagus, but which was not yet large enough to warrant dilatation or other endoscopic intervention. The Veteran has also described his symptoms in his January 2010 substantive appeal. He wrote that his epigastric distress is severe and radiating to the point of feeling like a heart attack and that these events occur at least three times a week and prevents him from eating meals. He stated that he has dysphagia and has lost 26 pounds since 2006 because of his inability to eat large meals. The Veteran also requested separate ratings for duodenal ulcer/gastritis and hiatal hernia due to the weight loss and radiating chest pain they cause. Analysis Turning first to the issue of the disability rating for GERD, hiatal hernia, and duodenal ulcer with gastritis, based on the evidence above, the Board finds the preponderance of the evidence to be against the award of a rating in excess of 30 percent. Diseases of the digestive system are rated under 38 C.F.R. § 4.114. Under Diagnostic Code 7305, duodenal ulcer is assigned a 20 percent evaluation for a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging ten days in duration; or with continuous moderate manifestations. A 40 percent evaluation is assignable for a moderately severe ulcer, which is less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent evaluation is assignable for a severe duodenal ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, DC 7305. Under Diagnostic Code 7307, hypertrophic gastritis is rated 30 percent when it is chronic, with multiple small eroded or ulcerated areas, and symptoms, and 60 percent when it is chronic with severe hemorrhages or large ulcerated or eroded areas. Atrophic gastritis is rated according to the criteria of the underlying condition. 38 C.F.R. § 4.114, Diagnostic Code 7307. Under Diagnostic Code 7346, hiatal hernia is assigned a 30 percent rating 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 rating 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. 38 C.F.R. § 4.114, Diagnostic Code 7346. Although the Veteran has asked that his gastric disabilities receive separate ratings, this is specifically prohibited by VA regulation. According to 38 C.F.R. § 4.113, coexisting diseases of the digestive system produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Certain diseases of this nature do not lend themselves to distinct and separate disability evaluations without violating the principle of pyramiding as set forth in 38 C.F.R. § 4.14. As such, 38 C.F.R. § 4.114 provides that ratings under diagnostic codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. The Board observes that the diagnostic codes for esophageal spasm or stricture (Diagnostic Codes 7203 and 7204) are not included in this list, and therefore the Veteran's service connected Barrett's esophagus may be assigned a separate rating, on the basis of separate, non-overlapping symptomatology. See Esteban, 6 Vet. App. at 262. A review of the evidence above shows that the Veteran's GERD, hiatal hernia, and duodenal ulcer with gastritis are together manifested by symptoms of chest and abdominal pain, recurrent nausea, and acid reflux. An increased rating under any of the diagnostic codes listed above requires more severe and frequent symptoms which have not been indicated in any of the Veteran's service, VA, or private treatment records, including vomiting, hematemesis or melena, hemorrhages or large ulcerated areas of the stomach, moderate impairment of health manifested by anemia or weight loss, or other symptoms which combined are productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7307, 7346. The Veteran has asserted that he has had some weight loss since 2006, but his records also show that this was following weight gain due to change in activity after separation from service, and none of the Veteran's treatment records indicate any substantial or abnormal weight loss or nutritional concerns, such as anemia, nor did the Veteran assert that his weight loss impaired his health. The June 2012 examiner also did not indicate weight loss as a current symptom for the Veteran. Furthermore, the Nissan fundoplication surgery the Veteran underwent in service has been consistently described as successful in reducing his symptoms from GERD and with no residuals or complications. In sum, the evidence establishes that the currently assigned 30 percent evaluation is appropriate, and that there is no basis upon which to award a higher rating. The Board finds the Veteran's reported symptomatology coming from GERD, hiatal hernia, and duodenal ulcer with gastritis does provide competent lay evidence in support of his claim. Competent lay evidence is any evidence not requiring that that the proponent have specialized education, training, or expertise. 38 C.F.R. § 3.159(a)(2). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran is competent to describe his symptoms of gastric disorders. The current disabilities at issue and their symptoms, as the Veteran describe them, most closely reflect the disability picture described under the criteria for hiatal hernia. The Veteran's symptoms closely approximate the criteria for a 30 percent rating, with persistently recurrent epigastric distress with dysphagia, accompanied by substernal pain. 38 C.F.R. § 4.114, Diagnostic Code 7346. However, the symptoms described by the Veteran, including severe radiating chest and abdominal pain and nausea, do not rise to the level of severity that would warrant the assignment of a rating in excess of 30 percent under Diagnostic Code 7346 or any of the diagnostic codes considered. Regarding Barrett's esophagus, the Veteran has been assigned a noncompensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7203. The Board notes that there are no specific rating criteria for Barrett's esophagus, but VA may apply the diagnostic code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous, when an unlisted condition is encountered. See 38 C.F.R. § 4.20. In the present case, the RO determined, and the Board agrees, that the most closely analogous diagnostic code pertaining to the Veteran's disability is for stricture of esophagus, 38 C.F.R. § 4.114, Diagnostic Code 7203. Under this code, a 30 percent rating is assigned for a moderate stricture of the esophagus; a 50 percent rating is assigned for a severe stricture, permitting liquids only; and an 80 percent rating is assigned when the condition permits the passage of liquids only, with marked impairment of general health. After a full review of the record, the Board finds that, for the entire initial rating period, the Veteran's service-connected Barrett's esophagus has more nearly approximated moderate stricture of the esophagus, thus meeting the criteria for an initial compensable disability rating of 30 percent. 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7203. The Veteran has reported on numerous occasions having difficulty swallowing, and the June 2012 VA examiner noted that the Veteran has esophageal stricture and dysphagia with food getting caught in the distal esophagus. The Veteran has also reported that his difficulties eating have caused him to miss meals and to lose weight. While the June 2012 examiner described the Veteran's esophageal stricture as "mild" and not "moderate," the Board finds that, affording the Veteran the benefit of the doubt and taking into consideration the totality of his reported symptoms, the criteria for an initial disability rating of 30 percent have been sufficiently approximated. 38 C.F.R. § 4.7. As discussed above, the Veteran's other gastrointestinal symptomatology, such as abdominal pain and nausea, may be related to Barrett's esophagus, but these symptoms have been considered in the award of his 30 percent rating for GERD, hiatal hernia, and duodenal ulcer with gastritis. As VA may not assign multiple ratings for duplicative or overlapping symptomatology, only the symptoms specifically attributed to the esophagus are considered in the current rating assignment. See Esteban, 6 Vet. App. at 261-62. Given the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating for Barrett's esophagus rating is warranted under Diagnostic Code 7203. A higher 50 percent rating is not warranted as there is no evidence of a severe stricture permitting liquids only, nor has the Veteran ever asserted that he has been restricted to consuming liquids. The Veteran has reported that while he sometimes has difficulty swallowing or must skip a meal due to gastric pain, he continues to eat meals on most days. Therefore the criteria for 50 percent or higher evaluation for Barrett's esophagus have not been met at any time during the current appeal. The Board has also considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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, 4 Vet. App. at 60. Here, the rating criteria for GERD, hiatal hernia, and duodenal ulcer with gastritis and for Barrett's esophagus reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. The Veteran has not reported any occupational limitations due to his service connected disabilities, and the June 2012 examiner noted that there was no impact on his ability to work. The record does not show that the Veteran has required any hospitalization during the appeals period, nor is there evidence in the medical records of an exceptional or unusual clinical picture. The Veteran's disability picture is sufficiently contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun, 22 Vet. App. at 115. Consequently, referral for extraschedular consideration is not warranted. Based on the foregoing, the Board finds that the rating currently assigned to the Veteran for GERD, hiatal hernia, and duodenal ulcer with gastritis is appropriate, that the evidence of record preponderates against a finding that the criteria for a rating in excess of 30 percent have been met. The Board also finds that a separate 30 percent rating, but no higher, for Barrett's esophagus is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of ratings higher than 30 percent for GERD, hiatal hernia, and duodenal ulcer with gastritis or for Barrett's esophagus, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial evaluation greater than 30 percent for GERD, hiatal hernia, and duodenal ulcer with gastritis is denied. Entitlement to an initial 30 percent evaluation for Barrett's esophagus is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs