Citation Nr: 1324408 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-04 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable rating for vasomotor rhinitis. 2. Entitlement to a compensable rating for diverticulitis requiring surgical resection with acid reflux. 3. Entitlement to a rating higher than 10 percent, for right shoulder strain. 4. Entitlement to a rating higher than 10 percent, for left shoulder strain. 5. Entitlement to a rating higher than 10 percent, for low back strain. 6. Entitlement to a compensable rating for right knee strain. 7. Entitlement to a compensable rating for left knee strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 2007. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, granted service connection for each of the above listed disabilities, assigning noncompensable (0 percent) disability evaluations, effective May 1, 2007. In his December 2007 Notice of Disagreement, the Veteran specifically limited his disagreement to these issues and to the noncompensable evaluation for history of retinal holes, status post laser treatment left eye with normal visual acuity and no constriction (left eye disability). In October 2008, the Veteran withdrew his disagreement with regard to his evaluation for left eye disability, prior to perfecting his appeal. In a May 2012 rating decision, the Veteran's evaluations for both shoulder disabilities and back disability were increased to 10 percent each, effective September 21, 2011. Inasmuch as a higher rating is available for this service-connected condition than that assigned in the May 2012 rating decision, and as a claimant is presumed to be seeking the maximum available benefit for a given disability, the claim for a higher rating as reflected on the title page remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is associated with the claims file. The issues of higher initial ratings for right shoulder strain, for left shoulder strain, low back strain, right knee strain, and left knee strain 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. FINDINGS OF FACT 1. Throughout the appeals period, the Veteran's symptoms of vasomotor rhinitis have included postnasal drip, rhinitis, congestion, perennial allergies, and occasional breathing difficulties. He has treated these symptoms with biweekly allergy shots, nasal sprays, eye drops, and two medication. 2. Throughout the appeals period, the Veteran's symptoms of diverticulitis requiring surgical resection with acid reflux have included intermittent tenderness along the mid abdomen, acid reflux, and no more than weekly bouts of gastric distress. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for vasomotor rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6522 (2012). 2. The criteria for a compensable evaluation for diverticulitis requiring surgical resection with acid reflux have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7327-7319 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at an April 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the hearing the undersigned identified the issues, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately several of the issues were remanded for new examinations. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial Ratings - Generally Disability evaluations are 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 the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet App 119, 125-26 (1999). Vasomotor Rhinitis The Veteran is seeking a compensable evaluation for his service connected vasomotor rhinitis. Under Diagnostic Code 6522, vasomotor rhinitis with no polyps, but with greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation. 38 C.F.R. § 4.97, Diagnostic Code 6522. A 30 percent evaluation is assigned when polyps are present. Id. Private treatment records dated February 2007 note the Veteran's complaints of postnasal drip, rhinitis, and congestion, but not polyps. At the time of his May 2007 general medical examination, the Veteran reported receiving regular allergy shots (every two weeks) and daily use of nasal spray. He denied any interference with breathing through his nose, purulent discharge, speech impairment, headaches, crusting, frequency of episodes, periods of incapacitation, effects on occupation, or effects on activities of daily living. Physical examination found no abnormal gross dental findings and no sinus tenderness. This disability was found to cause mild functional impairment. VA treatment records from May 2007 to May 2008 note that the Veteran has environmental allergies and was being treated with desensitization shots since 2006. At his October 2008 RO hearing, the Veteran testified that he was being treated by an allergist with allergy shots every two weeks, nasal sprays, eye drops, and two daily medications. In September 2011, the Veteran underwent a VA examination in conjunction with this appeal. At that time, he reported continued treatment with allergy visits/immunotherapy. He was prescribed xyzal, singulair, astepro nasal spray, omnaris spray, bepreve eye drops, and cromolyn eye drops. His symptoms had improved since onset. The examiner noted a history of perennial allergies and occasional breathing difficulties. Upon physical examination, the examiner found no evidence of sinus disease, no signs of nasal obstructions (including polyps, septal deviation, permanent hypertrophy of turbinates, rhinoscleroma, tissue loss, scarring, deformity, Wegener's granulomatosis, or granulomatous infection), no laryngectomy, and no residuals of an injury to the pharynx. The Veteran was diagnosed with allergic rhinitis. This disability was found to have no significant effect on his usual occupation or his usual daily activities. At his April 2013 hearing, the Veteran reported treatment by a private allergist, which included injections, pills, nasal sprays, and eye drops. Based on the above, the Veteran's vasomotor rhinitis most nearly approximates the criteria for the current noncompensable (0 percent) evaluation. Throughout the appeals period, the Veteran's symptoms of vasomotor rhinitis have included postnasal drip, congestion, perennial allergies, and occasional breathing difficulties. He has treated these symptoms with biweekly allergy shots, nasal sprays, eye drops, and two medication. While the Veteran's treatment regime is extensive, his remaining symptoms are not. The record does not reflect the presence of polyps. Similarly, despite the Veteran's complaints of congestion and occasional breathing difficulty, there is no evidence of nasal obstruction greater than 50 percent on both sides or complete obstruction on one side as required for a compensable evaluation under this diagnostic code. See 38 C.F.R. § 4.97, Diagnostic Code 6522. Thus, the Board determines that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's vasomotor rhinitis. 38 C.F.R. § 4.7. Diverticulitis Similarly, the Veteran is seeking a compensable evaluation for his service connected diverticulitis requiring surgical resection with acid reflux. In an April 2012 rating decision, the Veteran was awarded service connection for the associated scar. The Veteran has not appealed that rating decision. Under Diagnostic Code 7327, diverticulitis is rated as irritable colon syndrome, peritoneal adhesions, or colitis, ulcerative, depending upon the predominant disability picture. 38 C.F.R. § 4.114, Diagnostic Code 7327. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other. 38 C.F.R. § 4.114. A single evaluation will be assigned under the Diagnostic Code which represents the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Peritoneal adhesions are rated under Diagnostic Code 7301. 38 C.F.R. § 4.114. Mild peritoneal adhesions warrant a noncompensable (0 percent) rating. 38 C.F.R. § 4.114, Diagnostic Code 7301. Moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea), or abdominal distension. Moderately severe adhesions warrant a 30 percent rating and are manifested by partial obstruction with delayed motility of barium meal and less frequent and less prolonged pain. Id. Severe adhesions, with definite partial obstruction, shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage, warrant a 50 percent rating. Id. This is the maximum schedular rating assignable under Diagnostic Code 7301. Irritable colon syndrome is rated under Diagnostic Code 7319. 38 C.F.R. § 4.114. Under this diagnostic code, mild irritable colon syndrome (disturbances of bowel function with occasional episodes of abdominal distress) warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.114, Diagnostic Code 7319. Moderate irritable colon syndrome (frequent episodes of bowel disturbance with abdominal distress) warrants a 10 percent evaluation. Id. Severe irritable colon syndrome (diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress) warrants a 30 percent evaluation. Id. Ulcerative colitis is rated under Diagnostic Code 7323. 38 C.F.R. § 4.114. A 10 percent evaluation is warranted for moderate ulcerative colitis with infrequent exacerbations. 38 C.F.R. § 4.114, Diagnostic Code 7323. A 30 percent rating is warranted for moderately severe ulcerative colitis with frequent exacerbations. Id. Severe colitis, with numerous attacks per year and malnutrition, with health only fair during remissions, warrants a 60 percent rating. Id. Pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, warrants a 100 percent rating. Id. At the time of his May 2007 general medical examination, the Veteran reported an abscessed diverticulum in service that required surgery. Since then, the Veteran has reported intermittent tenderness along the mid abdomen at the surgical scar and acid reflux requiring Aciphex twice a day. He denied any weight loss, melena, fever, chills, nausea, vomiting, or hematemesis. This disability was found to cause mild functional impairment. VA treatment records from May 2007 to May 2008 note that the Veteran takes medication daily for his GERD and gets diarrhea with certain foods. At his October 2008 RO hearing, the Veteran testified that he was on daily Nexium and had to be mindful of what he ate to avoid a poor reaction. Despite these precautions, the Veteran still reported abdominal distress with regurgitation. In September 2011, the Veteran underwent a VA examination in conjunction with this claim. At that time, he reported no signs or symptoms attributable to his intestine surgery (such as pain, diarrhea, constipation, distension, anemia, nausea, or vomiting). He likewise denied weight loss or problems gaining weight. There was no interference with absorption and no fistula. This disability did not require an ileostomy or colostomy. The associated scar was not painful, unstable, of more than 39 square centimeters. This disability did not affect the Veteran's ability to work. At his April 2013 hearing, the Veteran reported experiencing diarrhea or constipation once a week. He had previously taken Nexium, but currently had a VA prescription medication. Prior to the new medication, the Veteran experienced daily heartburn, with discomfort, stomach cramping, and difficulty sleeping or lying down. Based on the above, the Veteran's diverticulitis most nearly approximates the criteria for the current noncompensable (0 percent) evaluation. Throughout the appeals period, the Veteran's symptoms have included intermittent tenderness along the mid abdomen, acid reflux, and no more than weekly bouts of gastric distress. The record does not show any peritoneal adhesions; therefore a compensable evaluation under Diagnostic Code 7301 is not warranted. 38 C.F.R. § 4.114. Likewise, the record does not show ulcerative colitis, much less the moderate ulcerative colitis with frequent exacerbations required for a compensable evaluation under Diagnostic Code 7323. Id. Instead, evaluation under the criteria for irritable colon syndrome is most appropriate for the Veteran's symptoms of diverticulitis. See 38 C.F.R. § 4.114, Diagnostic Code 7319. While the Veteran's symptoms include episodes of bowel disturbance, the record does not show frequent episodes of bowel disturbance with abdominal distress. Prior to his April 2013 testimony, the Veteran's reports of disturbances of bowel function were linked to specific foods that he tried to avoid. To the extent that the Veteran's testimony suggests more severe symptoms prior to his treatment with prescription medication, these recalled symptoms are in conflict with those recorded contemporaneously and the Board assigns more weight to the contemporaneous records. Even given the current weekly rate of recurrence described in his testimony, the Veteran's symptoms are more accurately described as disturbances of bowel function with occasional episodes of abdominal distress than frequent episodes of bowel disturbance with abdominal distress as required for the next higher evaluation. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Thus, the Board determines that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's diverticulitis requiring surgical resection with acid reflux. 38 C.F.R. § 4.7. Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, but the medical evidence reflects that the severity of those manifestations is insufficient to warrant a compensable evaluation in this case. As explained above, the Veteran's reported nasal congestion has not been shown to meet the nasal obstruction requirements for a compensable evaluation. Likewise, the Veteran's reports of weekly abdominal distress is not found to satisfy the requirements for moderate irritable colon syndrome as required for a compensable evaluation. In this way, the Veteran's symptomatology is adequately described by the diagnostic criteria. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. ORDER A compensable rating for vasomotor rhinitis is denied. A compensable rating for diverticulitis requiring surgical resection with acid reflux is denied. REMAND At the time of his hearing, the Veteran indicated that his joint disabilities (right shoulder strain, for left shoulder strain, low back strain, right knee strain, and left knee strain) had worsened since his last examination in September 2011. Therefore new VA examinations that address the current severity of these conditions is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (finding that the Veteran is competent to provide an opinion that his disability has worsened). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his bilateral shoulder disabilities. The claims file, including the additional records contained in the Virtual VA paperless claims file, must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. In reporting the current severity of the Veteran's bilateral shoulder disabilities, the examiner should consider the Veteran's subjective symptoms. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. Schedule the Veteran for a VA examination to determine the current severity of his low back disability. The claims file, including the additional records contained in the Virtual VA paperless claims file, must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. In reporting the current severity of the Veteran's low back disability, the examiner should consider the Veteran's subjective symptoms. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 3. Schedule the Veteran for a VA examination to determine the current severity of his bilateral knee disabilities. The claims file, including the additional records contained in the Virtual VA paperless claims file, must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. In reporting the current severity of the Veteran's bilateral knee disabilities, the examiner should consider the Veteran's subjective symptoms. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 4. Thereafter, the RO/AMC should readjudicate the claims in light of the additional evidence obtained. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs