Citation Nr: 1326392 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-11 442A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 20 percent for duodenal ulcer with gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had active military service from August 1952 to July 1954. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In May 2013, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus and remanded the issue currently on appeal back to the RO in May 2013 for a current VA evaluation of the Veteran's duodenal ulcer with GERD (gastrointestinal disability) for rating purposes, which was conducted in June 2013. Because a VA evaluation of the Veteran's service-connected gastrointestinal disability was obtained in June 2013 and has been added to the claims file in response to the Board remand, there has been substantial compliance with the Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in April 2013, and a copy of the transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's gastrointestinal disability does not involve moderately severe disease with impairment of health manifested by anemia and weight loss or with recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. The gastrointestinal disability also does not involve persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, and substernal pain, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for gastrointestinal disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.114, Diagnostic Code 7305 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in August 2009, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. In compliance with the duty to notify, the Veteran was informed in the August 2009 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the August 2009 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA gastrointestinal evaluation was conducted in June 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2013 VA evaluation obtained in this case is adequate, as it includes a discussion of the Veteran's relevant gastrointestinal symptomatology. There is adequate medical evidence of record, which include VA treatment records and a recent VA examination report, to make a determination on the increased rating issue in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination relevant to the increased rating issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his April 2013 videoconference hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran's representative and the VLJ asked questions to ascertain the Veteran's gastrointestinal symptomatology. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim An August 1984 rating decision granted service connection for gastrointestinal disability and assigned a 10 percent rating effective April 18, 1984, under Diagnostic Code 7305. A January 1985 rating decision granted a 20 percent rating effective April 18, 1984. A claim for an increased rating for gastrointestinal disability was received by VA in June 2009. The claim for increase was denied by a rating decision in May 2010, and the Veteran timely appealed. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of 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 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a competent source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 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. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). While diseases of the digestive system, particularly within the abdomen, differ in the site of pathology, they produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. See also 38 C.F.R. § 4.113 (2012). Disabilities of the digestive system are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Codes 7200-7348. Section 4.114 provides that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's gastrointestinal disability is rated as 20 percent disabling under the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7305. Under Diagnostic Code 7305, a 10 percent evaluation is assignable for a mild ulcer with recurring symptoms once or twice a year. A 20 percent evaluation is assignable 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, Diagnostic Code 7305 (2012). Under Diagnostic Code 7346, for hiatal hernia, a 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned when the disease exhibits two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). Relevant treatment records prior to March 2010 do not reveal treatment for gastrointestinal disability. The Veteran complained on VA evaluation in March 2010 of sour reflux when the season changes, which usually subsides for a few months. He had some dysphagia or odynophagia related to his myasthenia gravis. He took Ranitidine for heartburn, which did not really help. There were no periods of incapacitation due to stomach or duodenal disease. He had burning pain daily. He had episodic diarrhea but no nausea or vomiting. He was 68 inches tall and weighed 210 pounds, with no recent weight change. There were no signs of anemia. It was noted that he had retired from work as a machinist in 1989 due to age or duration of work. GERD was diagnosed. The Veteran's gastrointestinal disability did not affect his daily activities. VA treatment records for April 2012 reveal that the Veteran's heartburn was generally controlled; the assessment was acid reflux. The assessment in August 2012 was GERD with history of peptic ulcer disease, stable on medication. The Veteran testified at his April 2013 videoconference hearing that he had burning, regurgitation 5-6 times a year, and heartburn a couple of times a week. The Veteran complained on VA examination in June 2013 of at least monthly abdominal pain, recurrent nausea, and vomiting at least four times a year. He reported at least four incapacitating episodes a year, which lasted less than a day each. His gastrointestinal condition did not impact his ability to work. It was noted that, according to the Veteran's primary physician, the Veteran had drug-induced anemia. The examiner did not check the box to indicate that the Veteran had had recent weight loss. The examiner concluded after review of the claims file and examination of the Veteran, that it was more likely than not that increased subjective symptoms of nausea and vomiting, as well as his reported incapacitation, were due to the medication he took to treat his myasthenia gravis, which are reported to include side effects of nausea, vomiting, diarrhea, and abdominal cramping. In order to warrant an increased rating of 40 percent for ulcer disease under Diagnostic Code 7305, there would need to be evidence of moderately severe disease with impairment of health manifested by anemia and weight loss or evidence of recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. To warrant an increased rating of 30 percent for a hernia under Diagnostic Code 7346, there would need to be evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, and substernal pain, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In this case, the medical evidence does not show that the Veteran's service-connected gastrointestinal disability causes anemia and weight loss, recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year, or persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, and substernal pain, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In fact, it was noted on VA evaluation in June 2013 that it was more likely than not that the Veteran's increased subjective symptoms of nausea and vomiting, as well as his reported incapacitation, which only averaged a day each in duration, were due to the medication he took to treat his myasthenia gravis, which is not a service-connected disability. There was no weight loss found on VA evaluations in March 2010 and June 2013. It was also noted in June 2013 that the Veteran's anemia was due to his medication. Consequently, a rating in excess of 20 percent for gastrointestinal disability is not warranted under Diagnostic Code 7305. The evidence does not indicate persistent, recurrent, epigastric distress based on the VA examination and the Veteran's testimony indicating 5 to 6 episodes per year lasting a day plus heartburn more often. The evidence also does not support a finding that the Veteran's duodenal ulcer with GERD is productive of considerable impairment of health. The Veteran does have to limit what he can eat and the heartburn is painful and the episodes last a day or so but this is manageable and adequately compensated by the current 20 percent rating. The Veteran has not been considerably limited in his activities or lifestyle. The Board does not find that any other digestive system diagnostic code would be more appropriate for rating the Veteran's gastrointestinal disability, including adhesions of the peritoneum (Diagnostic Code 7301), postgastrectomy syndromes (Diagnostic Code 7308), colitis (Diagnostic Code 7323), or diverticulitis (Diagnostic Code 7327). See 38 C.F.R. § 4.114 (2011). See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board has also 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 this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected gastrointestinal disability is contemplated and reasonably described by the rating criteria discussed above. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's gastrointestinal disability presents "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). The Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider 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). Therefore, referral for extraschedular consideration is not warranted. Lastly, the Court has held that VA must address the issue of entitlement to a total disability rating based on individual unemployability if it is reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record does not reasonably raise that issue. The Board finds that the preponderance of the evidence weighs against the increased rating claim decided herein. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a higher rating for the disability at issue, is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to a rating in excess of 20 percent for gastrointestinal disability is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs