Citation Nr: 1322599 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 10-21 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 30 percent for gastroesophageal reflux (GERD) with irritable bowel syndrome (IBS) and hiatal hernia. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: John Worman, Attorney-at-Law ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from July 1977 to September 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This rating decision granted service connection for GERD and rated it as 10 percent disabling. The RO subsequently increased this rating to 30 percent disabling in a September 2011 rating decision. This increase during did not constitute a full grant of the benefit sought. Therefore, the Veteran's claim for an increased evaluation for the service-connected disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). A review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to the present appeal. The issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Manifestations of the Veteran's GERD with IBS and hiatal hernia do not include symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for GERD with IBS and hiatal hernia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.20, 4.114, Diagnostic Codes 7319, 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claim Assistance Act of 2000 (VCAA) The Veterans Claim Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) redefined VA's duty to assist a Veteran in developing a claim for VA benefits. Regulations implementing the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the claim for a higher rating for GERD with IBS and hiatal hernia arises from the Veteran's disagreement with a rating assigned in connection with the grant of service connection for the disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to a "downstream" question, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with downstream elements (such as a disability rating or effective date) are appropriately addressed under the provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran was provided proper notice by April 2009 and December 2009 letters from the RO. The Board also notes that the VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all identified post-service treatment records and Social Security Administration records. The Veteran has been afforded VA examinations in July 2009 and June 2011, and the examinations are adequate, as they are thorough and detailed. In view of the foregoing, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Pertinent Law and Regulations Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity as determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Factual Background and Analysis The Veteran's GERD with IBS and hiatal hernia has been rated under 38 C.F.R. § 4.114, Diagnostic Codes 7319, 7346, as 30 percent disabling. At the outset, the Board notes that 38 C.F.R. § 4.113 states that diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, coexisting diseases in this area do not lend themselves to distinct and separate evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. Hence, the ratings under Diagnostic Codes 7301 to 7329, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture. 38 C.F.R. § 4.114. The RO determined that the Veteran's predominant disability picture is GERD, which is rated by analogy to hiatal hernia, diagnostic code 7346. The Board notes that the Veteran could not receive a rating higher than 30 percent if IBS was considered to be the predominant disability, because 30 percent is the highest schedular rating for IBS, so this alternative need not be discussed here. See 38 C.F.R. § 4.114, diagnostic code 7319. A 30 percent rating for IBS requires severe IBS with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. Under Code 7346, a 10 percent rating is assigned for hiatal hernia with two or more of the symptoms for the 30 percent evaluation of lesser severity. The next higher rating of 30 percent is provided for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum rating of 60 percent is authorized for hernia with 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, Code 7346. The pertinent medical evidence of record includes VA compensation examinations in July 2009 and June 2011 and a December 2009 emergency room treatment record. In the July 2009 examination, the Veteran stated he was diagnosed with acid reflux disease in 1977 while in service. He was taking omeprazole, 2 pills per day, but still had break-through symptoms. His symptoms included stomach pain and occasional burning chest pain with contents into his throat and lots of belching. He stated that during these flares, his stomach would be too painful for any activity and he admitted to fatigue. He noted periods in which he did not take his medication, but as of the examination, he had resumed the medications. A byproduct of resuming the medications was weight gain (approximately 30-40 pounds) because he was now eating. He denied any nausea, vomiting, or hematemesis. He reported constipation if he ate too much sugar. He denied any blood in his stools. The examiner ultimately diagnosed the Veteran with GERD, IBS, and a small sliding hiatal hernia. The Veteran was admitted to the emergency room of a private hospital in December 2009 for digestive problems. He tested positive for abdominal pain in the epigastric area, burning, and constipation. He reported alternating bouts of constipation and diarrhea. He tested negative for nausea, vomiting, hematemesis, black/tarry stool, and rectal bleeding. He was diagnosed with GERD, hiatal hernia, and constipation. The Veteran was afforded a second VA compensation examination in June 2011. Upon examination, the Veteran stated he had pain at the rectum while sitting, and that he had to keep toilet paper or his wife's pantiliners in his underwear because he had a clear substance that leaked out of his rectum. He noted that he was still taking omeprazole for his reflux. He likewise noted that although he felt like there was always something in his throat, he did not experience vomiting. He stated that he had lost approximately 7 pounds, but he was unsure of the amount of time over which this weight loss had occurred. He reported constipation and diarrhea. He complained of abdominal pain after eating, and pain in the same area if he did not eat. The examination revealed hemorrhoids, but no active bleeding. The examiner diagnosed him with a "nervous condition referred to mental health," GERD, hiatal hernia, internal and external hemorrhoids, and IBS. In light of the above, the preponderance of the evidence is against entitlement to a rating in excess of 30 percent. As noted above, the maximum rating of 60 percent under Diagnostic Code 7346 is authorized for hernia with 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, Code 7346. Here, while symptoms of pain are noted, there has been no evidence of vomiting, material weight loss, hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Indeed, during the July 2009 VA compensation examination the Veteran denied any nausea, vomiting, or hematemesis, and noted that he had gained 30-40 pounds. During the December 2009 emergency room visit, he tested negative for nausea, vomiting, and hematemesis. Moreover, during the June 2011 VA compensation examination, it was noted that he did not experience vomiting, and while he experienced some weight loss (7 pounds), it was not "material" as required by the Diagnostic Code and the Veteran was unsure of the amount of time over which this weight loss had occurred. The Veteran has never been diagnosed as having anemia and there is no indication of severe impairment of health. Rather, on VA examinations in July 2009 and June 2011 the Veteran was described as well nourished. For these reasons, the Board finds that the Veteran's GERD with IBS and hiatal hernia has not been manifested by symptomatology more nearly approximating the criteria for the next-higher 60 percent rating under Diagnostic Code 7346. Because the preponderance of the evidence is against an increased rating in excess of 30 percent for the service-connected disability, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has considered evaluating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds no applicable one that would avail the Veteran of a higher disability rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board has considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Referral for extraschedular consideration is not warranted. Specifically, with regard to the first Thun factor, a comparison of the Veteran's disability and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). His disability is manifested by symptoms and functional impairment expressly addressed by the rating criteria. The Veteran's reported symptoms, including epigastric pain and distress, pyrosis (burning), regurgitation (contents into his throat), constipation, and diarrhea are expected concomitants of the symptoms and pathology already compensated under the applicable schedular criteria. Thus, such limitations are within the purview of the schedular criteria and have been considered in determining that the Veteran's GERD with IBS more nearly meet the criteria for a 30 percent rating. Indeed, the schedular criteria under all DC's and associated regulations ultimately have in view the functional effects contemplated by such criteria, whether or not such functional limitations are explicitly mentioned in them. See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria 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); 38 C.F.R. § 4.2 (2012) (providing, in pertinent part, that in view of the number of atypical instances, it is not expected that all cases will show all the findings specified, but coordination of rating with impairment of function will be expected in all instances). Thus, the Veteran does not have symptoms, pathology, or functional limitations associated with his disability that has been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Id. at 115. Rather, the disability must be "exceptional" or "unusual." Consequently, the available schedular evaluations are adequate to rate this disability, and therefore the first Thun factor is not satisfied. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Moreover, such factors, including marked interference with employment or frequent periods of hospitalization, have not been shown. Therefore, referral for extraschedular consideration is not warranted. See id. ORDER Entitlement to an initial disability rating in excess of 30 percent for the Veteran's GERD with IBS and hiatal hernia is denied. REMAND The Board finds that additional development is required regarding the Veteran's claims for service connection for a psychiatric disorder and a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Under 38 C.F.R. § 4.125(a), the diagnoses of mental disorders should conform to the criteria in the DSM-IV. Furthermore, in the field of mental disorders, personality disorders, characterized by developmental defects or pathological trends in the personality structure shown by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration, or other psychiatric symptomatology shown to have existed prior to service, will be accepted as showing preservice origin. 38 C.F.R. § 3.303(c). Consequently, personality disorders are not considered diseases or injuries within the applicable legislation governing awards of compensation benefits. Id. However, disability resulting from a mental disorder superimposed upon a personality disorder may still be service connected. 38 C.F.R. § 4.127. The Veteran joined the Army after induction at Fort Dix in July 1977. He developed the gastrointestinal problems (described earlier in this decision) while in service, and in 1981, attempted suicide. In the wake of his suicide attempt, the Veteran had a psychiatric observation in June 1981. He was diagnosed with a personality disorder, passive-aggressive type, severe and manifested by indirect expression of anger, and which caused a marked degree of impairment for further military duty. He was also diagnosed with an adjustment disorder, with mixed emotional features. He was afforded a VA compensation examination in July 2009. During this examination, he explained that his in-service suicide attempt consisted of an overdose of pills and subsequent observation at Fitzsimmons Army Medical Center for two weeks. While discussing this part of his service with the examiner, the Veteran, without explanation, left the compensation examination. The examiner noted this, and only upon a subsequent review of the claims file, continued the June 1981 diagnosis of a passive-aggressive personality disorder. Importantly, the examiner did not diagnose an adjustment disorder as in 1981. VA treatment records show that the Veteran was diagnosed in June 2010 with a "mood disorder" and was prescribed citalopram. See June 14, 2010 VA treatment record. The Veteran was afforded a second VA compensation examination in June 2011. Here, he was once again diagnosed with a personality disorder. On the basis of the foregoing, the Board finds that another VA compensation examination is needed to clarify the Veteran's diagnoses. That is, the July 2009 and July 2011 examiners diagnosed the Veteran with a personality disorder, which is not considered a disease or injury within the applicable legislation governing awards of compensation benefits pursuant to 38 C.F.R. § 3.303(c). However, it is unclear if a "mood disorder," as diagnosed in June 2010, may be service connected. Also, in his December 2009 notice of disagreement, the Veteran stated his "constant diarrhea and constipation" affected his "ability to maintain gainful employment." Based on this statement, the Board finds that a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the record. In this regard, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court determined that claim for a TDIU is considered part and parcel of a claim for benefits for the underlying disability. Id. at 453-54. Therefore, in this case, the Veteran's claim for a TDIU is part and parcel of his claim for increase for GERD with IBS, and as such, this issue is properly before the Board. Accordingly, the issues on appeal are as stated on the cover page. On remand, the Veteran should be provided VCAA notice for his TDIU claim and a VA examination/opinion should be obtained as to his employability, as set forth below. As the case must be remanded for the foregoing reasons, any recent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Send a VCAA notice letter to the Veteran and his representative regarding the claim for a TDIU. The Veteran should also be asked to complete and submit a formal claim/application for entitlement to a TDIU. 2. Make arrangements to obtain the Veteran's VA treatment records, dated since September 2011. 3. Thereafter, schedule the Veteran for a VA examination by a psychiatrist or psychologist. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner should identify all current psychiatric disorders found to be present. In so doing, the examiner must address the assessment of a mood disorder noted in the VA treatment record dated June 14, 2010 and specifically determine whether the Veteran has any current psychiatric disorders apart from a personality disorder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the in-service treatment records (psychiatric observation) dated in June 1981. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for an appropriate VA examination of his hemorrhoids and gastroesophageal reflux with irritable bowel syndrome and hiatal hernia. The claims file must be made available to, and reviewed by, the examiner. All appropriate testing should be conducted. The examiner must provide an opinion as to whether the Veteran's service-connected disabilities (i.e., hemorrhoids and gastroesophageal reflux with irritable bowel syndrome and hiatal hernia), either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. To this end, the examiner must give some indication as to whether any employment in which the Veteran may engage is only possible with special consideration or accommodation (i.e., just marginal employment versus substantially gainful employment). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the examiners if all questions posed are not answered. 6. Finally, after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought remain denied, in whole or in part, the Veteran and his attorney must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs