Citation Nr: 1330469	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  09-09 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for reflux esophagitis, to include Barrett's esophagus.


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel



INTRODUCTION

The Veteran served on active duty from May 1966 to May 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated July 2010, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  The issue on appeal was remanded by the Board for further development in May 2012.

The issue of entitlement to service connection for a stomach disorder, as secondary to service-connected posttraumatic stress disorder (PTSD) been raised by the record (see VA examination report, July 2012), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The Veteran's reflux esophagitis, to include Barrett's esophagus, is manifested by mild dysphagia, heartburn, mild anemia (10.5-11 g/dl), transient melena, and reflux.  A diagnosed hiatal hernia was mild and asymptomatic.  The Veteran's disability is not manifested by symptoms of pain, vomiting, material weight loss, or moderate anemia.


CONCLUSION OF LAW

The criteria for an initial evaluation in excess of 30 percent for reflux esophagitis, to include Barrett's esophagus, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code 7346 (2012). 



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified in May 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in July 2010.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Nothing more is required in this case.

The Veteran is challenging the initial evaluation assigned following the grant of service connection for the disability addressed herein.  In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91; also see Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   Thus, because the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied.  

As for the duty to assist, the Veteran's service treatment records have been obtained.  Pertinent post-service medical records have been obtained, to the extent available.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board therefore finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  Here, pursuant to the May 2012 Board remand, the Veteran was afforded a VA examination to address his claim in July 2012.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination report is adequate to decide the claim addressed in this decision, as the report included a thorough review of the file, as well as examination findings relevant to the issue at hand.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Increased Rating

The Veteran claims that his currently-service-connected reflux esophagitis, to include Barrett's esophagus, is more severe than indicated by his current disability rating of 30 percent.  The Board points out that disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  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.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran.  See 38 C.F.R. § 4.3 (2012). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id.  In this case, the evidence of record does not establish an additional, distinct time period in which the issue on appeal resulted in symptoms that warrant a staged rating.  In the present case, the grant of service connection for reflux esophagitis, to include Barrett's esophagus, was effective March 30, 2007.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with    38 C.F.R. § 4.25 (2012).  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," Butts v. Brown, 5 Vet. App. 532, 538 (1993), and one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in Diagnostic Code by a VA adjudicator must, however, be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

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 for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2012).  

The Veteran's service-connected reflux esophagitis, to include Barrett's esophagus, has been evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7346, as hiatal hernia.  Under Diagnostic Code 7346, the Veteran's current 30 percent rating requires 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 60 percent rating requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

In the case that the Veteran's disability could be rated by analogy to the rating criteria for a stricture of the esophagus, Diagnostic Code 7203, which covers strictures of the esophagus, allows for an 80 percent rating when the stricture permits passage of liquids only, with marked impairment in general health.  A 50 percent rating is assigned when the stricture is severe and permits liquids only.  A 30 percent rating is assigned when the stricture is moderate.  See 38 C.F.R. § 4.114, Diagnostic Code 7203.

The Board also notes that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other.  38 C.F.R. § 4.114 (2012).  Instead, a single evaluation 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 evaluation.

Turning to the evidence of record, the Veteran was first afforded a VA examination in conjunction with his claim in April 2008.  Referring to private medical reports of record, the examiner noted a prior diagnosis of gastroesophageal reflux disorder (GERD) prior to an esophagogastroduodenoscopy (EGD) in 2004.  The Veteran indicated that it felt like his food was getting stuck.  An upper endoscopy revealed findings of Barrett's epithelium after biopsies were taken, as well as Schatzki's ring, a mechanical anatomical deformity, which was dilated.  

Turning back to the time of the examination, the Veteran denied symptoms of reflux, regurgitation, nausea, vomiting, diarrhea, constipation, weight loss, anorexia, hematemesis, hematochezia, or melena.  He denied abdominal pain, and he denied bloating.  He took Nexium daily and achieved complete control.  He denied waking up at night due to GERD symptoms, and he denied any effect on his activities of daily living.

Following a physical examination, the Veteran was diagnosed with mild esophageal strictures, secondary to Schatzki's ring, resolved with endoscopic dilatation.  It was further noted that the Veteran's prior subjective complaints of acid reflux with regurgitation of food were likely related to Schatzki's ring as well, since his endoscopy was negative for any evidence of esophagitis or acid reflux.  Since the dilatation and the use of Nexium, the Veteran's symptoms had completely resolved, and the physical examination was normal.  

The Veteran was next afforded a VA examination in April 2010.  At that time, the Veteran reported nausea a couple times per month, but no vomiting.  He denied constipation or diarrhea, but endorsed abdominal cramping.  Again, prior records were addressed, to include the Veteran's history of reflux and regurgitation prior to an EGD in August 2003.  He denied any hospitalizations, surgeries, or trauma to the esophagus or stomach.  He also denied any occupational problems associated with his reflux and Barrett's esophagus.  

On examination, there were no signs of anemia, and no abdominal pain was reported.  No malnutrition was observed, nor was there significant weight gain or loss.  His diagnosis of reflux esophagitis and Barrett's esophagus was confirmed.  

A review of his private treatment records reveals that in late April 2011, the Veteran was hospitalized after presenting with black stools (i.e., melena) for one week, plus a substantially-low hemoglobin level of 5 gm/dl.  He received a blood transfusion, though an EGD was unremarkable.  In May 2011, the Veteran returned for a follow-up outpatient visit, at which time the clinician noted that that the Veteran had experienced no further issues with melena and generally felt well, although the Veteran had lost approximately six pounds.  The provider also indicated that there was no clear cause for the veteran's gastrointestinal (GI) bleeding.  The Veteran's hemoglobin was stable at about 10.5 to 11 gm/dl.  It was further noted that, although the Veteran did not appear to be experiencing any further issues with gastrointestinal bleeding, he could still have a source of bleeding in the small intestine that had yet to be discovered.  

An EGD was performed in June 2011.  Findings included erythema in the antrum, as well as superficial ulceration present in the atrium measuring 5 mm.  A hiatal hernia was present, as well as a lower esophageal ring.  The remainder of the upper endoscopy appeared normal.  The Veteran was diagnosed with antral gastritis, antral ulceration, a hiatal hernia, a lower esophageal ring, and dysphagia.  A dilation was performed during the procedure.

At the time of the Veteran's July 2011 VA examination (performed in conjunction with his claim for irritable bowel syndrome), the examiner noted that the Veteran had, in fact, received a blood transfusion in April 2011, which the examiner noted in the report.  

Subsequent to a May 2012 Board remand, the Veteran was afforded his most recent VA examination in July 2012.  The examiner noted that the Veteran carried diagnoses of GERD, a hiatal hernia, an esophageal stricture, and Barrett's esophagus.  The examiner, who examined the Veteran in April 2010, indicated that, since that time, the Veteran experienced a serious gastrointestinal bleed which required transfusion and a 4-day hospitalization.  Symptoms reported at the time of the examination included dysphagia, heartburn, reflux, transient melena (one episode per year), and anemia.  It was further noted that the Veteran had mild esophageal stricture, and underwent dilatation in June 2011 which helped his dysphagia slightly.  It was noted that an upper endoscopy performed in June 2011, revealing mild, chronic esophagitis.  Prior to that procedure, laboratory testing in May 2011 indicated hemoglobin readings of 10.5 to 11, with no other significant test findings or results of record.

The examiner stated that, at the time of the April 2010 VA examination, his esophageal reflux was well-controlled with the use of Nexium since 2004.  He opined that the stricture found in June 2011 was the likely cause of the Veteran's dysphagia.  As to the Veteran's massive GI bleed, the examiner determined that this was less likely than not the result of a reflux condition.  Instead, it was noted that the Veteran's detected stomach ulcerations (antrum) were the more likely cause, as opposed to originating in the esophagus.  The hiatal hernia noted in June 2011 was mild and asymptomatic at the time of the July 2012 VA examination.  While the Veteran's heartburn was most likely related to GERD, it was likely the result of alcohol consumption.  The examiner pointed out that the prior GI bleed likely originated from the stomach, which may be linked to alcohol use as the result of the Veteran's diagnosis of posttraumatic stress disorder.

Upon careful review of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent under either Diagnostic Code 7203 or Diagnostic Code 7346.  The evidence of record does not show the Veteran has vomiting, material weight loss, moderate anemia, or other symptoms productive of severe impairment of health to warrant a rating higher than 30 percent under Diagnostic Code 7346.  Though some weight loss was noted, the Board notes that a difference of six pounds is not considered material in this case.  Further, while a massive GI bleed led to a 4-day hospital stay, the July 2012 examiner indicated that a stomach ulcer was the most likely cause, and not the Veteran's esophageal conditions, currently on appeal.  Instead, the examiner found that the Veteran's reflux disorder was well-controlled, and that his hiatal hernia was mild and asymptomatic.  While melena was found, it was noted to be transient, with only one occurrence per year.  As to anemia, only mild anemia has been demonstrated during the most recent testing, with readings of 10.5-11 gm/dl.  As to the low reading of 5 g/dl in April 2011, as noted, this occurrence was attributed to a non-service-connected stomach ulcer, and not the Veteran's esophageal conditions.

Further, the Veteran is not entitled to a higher rating under Diagnostic Code 7203 as the evidence of record does not show a severe stricture permitting consumption of liquid only.  The Veteran endorsed difficulty swallowing, and the evidence indicates that this symptom was lessened following a dilatation in June 2011.  At no time has the Veteran endorsed an inability to swallow all solid food.  Thus, the Board cannot conclude that his symptoms more closely approximate those associated with a 50 percent rating under Diagnostic Code 7203. 

In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service-connected esophageal disability.   In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing heartburn, difficulty swallowing, and acid reflux.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, the Board finds the objective medical findings and opinions provided by the VA and private examiners of record are afforded greater probative weight.  The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).  

The above determination is based upon consideration of applicable rating provisions.  It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2012).  The symptoms of his disability have been accurately reflected by the schedular criteria.  The Veteran's disability was not found to interfere with employment, nor the activities of daily living, at any time during the appellate period.  

Further, the Board points out that his disability rating encompasses a degree of occupational impairment relative to that rating.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  

In light of the foregoing, the Board finds that an evaluation in excess of 30 percent for the Veteran's esophageal disability is not warranted at this time.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  As the preponderance of the evidence is against the Veteran's claim for an increased initial rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial evaluation in excess of 30 percent for reflux esophagitis, to include Barrett's esophagus, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs