Citation Nr: 1332452 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-19 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for hypertrophic gastritis (previously diagnosed as duodenal ulcer), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from July 1952 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision from the Department of Veterans Affairs (VA) Special Processing Unit at the Regional Office (RO) in Cleveland, Ohio, which continued a 10 percent rating for gastritis, previously diagnosed as duodenal ulcer. The Veteran resides in South Carolina, and the RO in Columbia, South Carolina has jurisdiction in this case. In a November 2011 rating decision, the RO increased the rating for the Veteran's gastritis from 10 to 20 percent, effective October 25, 2010, the date of the Veteran's increased rating claim. As the rating for the Veteran's gastritis is less than the maximum available rating, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board, in its prior remand, phrased the issue as though it were for two rating periods; however, upon further review, the matter is recharacterized in the case caption, above, to correctly reflect this as an issue of entitlement to a rating in excess of 20 percent for the entire period on appeal. In August 2012, the Veteran testified before the undersigned sitting at the RO. A copy of the hearing transcript is of record. In December 2012 and May 2013, the Board remanded the appeal for further development, and it once again returns to the Board for appellate review. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's gastritis symptoms are shown by medical evidence to be the same ongoing process of the ulcer diagnosed during his active duty military service. 2. The Veteran's gastritis is manifested by ongoing weight loss, with episodes described as severe involving diarrhea, melena, vomiting, and nausea, lasting ten days to two weeks four or more times per year, but which are not shown to be productive of anemia or definite impairment of health. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for hypertrophic gastritis (previously diagnosed as duodenal ulcer) have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7305 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a letter dated in November 2010, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating for his service-connected hypertrophic gastritis (previously diagnosed as duodenal ulcer). He was also notified as to what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran to submit evidence from medical providers, and his own statements or statements from others who have witnessed how his disability has affected him. The letter also notified the Veteran that the impact of the condition and symptoms on his employment is a factor in determining disability rating. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). In addition, the November 2010 letter advised the Veteran of how effective dates are assigned, and the type of evidence which impacts that determination. The Veteran's claim was last readjudicated in September 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, post-service VA and private treatment records, VA examination reports, and several lay statements. The Veteran was also afforded a Travel Board hearing in August 2012, a transcript of which is in the claims folder and was reviewed by the Board. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for his scheduled VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath, 1 Vet. App. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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 based on the facts found - a practice known as "staged" ratings. The Veteran was originally service-connected for the disability under appeal by way of a December 1959 rating decision. At that time the disability was characterized as "ulcer, stomach, now diagnosed as hypertrophic gastritis." He filed this claim for an increased rating in October 2010. The disability rating varied over the years between 1959 and 2010. A 10 percent rating was assigned at the time the Veteran filed his claim for increase. This claim was denied by way of the December 2010 rating decision under appeal. A November 2011 rating decision increased the rating to 20 percent, effective October 25, 2010, the date of the claim for an increase. The Veteran has continued his appeal of the rating assigned. Thus, the question at hand is whether a rating in excess of 20 percent is warranted for the Veteran's gastritis, previously diagnosed as duodenal ulcer. The current 20 percent rating is assigned under 38 C.F.R. § 4.114, Diagnostic Code 7305, which rates the symptoms of duodenal ulcer. This rating is within the schedule of ratings for the digestive system. Ratings under this schedule will not be combined with each other. 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. 38 C.F.R. § 4.114. In this case, the Veteran's disability considers the ulcer evidenced in service, along with the gastritis now present. Thus, the Board will discuss the propriety of the 20 percent rating under both rating criteria (Diagnostic Code 7305 for duodenal ulcer and Diagnostic Code 7307 for gastritis) to determine whether an increase is warranted under either. Under Diagnostic Code (DC) 7305, which pertains to duodenal ulcer, the currently assigned 20 percent rating is applied when the evidence shows that the symptoms are moderate; with recurring episodes of severe symptoms two or three times per year averaging ten days in duration; or with continuous moderate manifestations. For a 40 percent rating, the symptoms must be moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times per year. And, for a 60 percent rating, the maximum under DC 7305, the evidence must show symptoms that are severe; 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. Under DC 7307, an increase to 30 percent requires evidence showing that the condition is chronic with small eroded or ulcerated areas, and symptoms. For a 60 percent rating, the maximum under DC 7307, the evidence must show that the condition is chronic with severe hemorrhages, or large ulcerated or eroded areas. Again, the Veteran filed this claim in October 2010. The record contains VA medical records documenting clinical treatment related to the Veteran's disability, as well as VA examination reports, both of which will be discussed, in turn, in this analysis. The Veteran sought care in October 2010 for epigastric pain with episodic dark tarry stools for the prior four months. He reported generalized weakness, and weight loss over the prior two months. The clinical notes show that he weighed 204 pounds in February 2010, compared to 184 pounds on the date of examination. Dysphagia was also described over the prior few weeks, with persistent nausea and melena present most of the time. The physician assessed him as having melena, weight loss, epigastric pain, dysphagia, and a positive fecal occult blood test per digital rectal examination. His condition was characterized as severe systemic disease, not incapacitating. His complete blood count (CBC) was within normal limits, other than slightly elevated hematocrit. Esophagogastroduodenoscopy (EGD) and colonoscopy were scheduled. On VA examination in November 2010, the Veteran continued to report daily epigastric pain, one to several hours after eating. He reported weekly nausea and diarrhea one to four times daily. Abdominal tenderness was noted on physical examination. The examiner confirmed that there were no signs of anemia. EGD performed in November 2010 revealed no evidence of ulceration, masses or other lesions of the duodenal bulb and also noted mild diffuse gastritis. The VA examiner confirmed the diagnosis as gastritis with no objective evidence of active ulcer, yet noted the "problem associated with the diagnosis" as "duodenal ulcer." The examiner opined that the Veteran's abdominal pain, weight loss and diarrhea are not related to the gastritis, but was unable to identify the etiology for these symptoms. Outpatient records in April 2011 show that the Veteran complained of abdominal cramping and burning, particularly late in the evening and at night, but no pain, nausea, vomiting, diarrhea, bloody or tarry stools. The Veteran again underwent VA examination in November 2011. He was reported as having a history of passing blood in stools and noted duodenal ulcer during endoscopy. At the time of examination, he reported recurring episodes, 4 or more per year, of severe symptoms. Abdominal pain was noted as periodic. There was no notation of anemia. The Veteran's baseline weight (average weight for 2-year period preceding onset of disease) was noted to be 200 pounds, with the current weight noted as 184 pounds. Periodic nausea and recurrent vomiting were reported, as well as transient episodes of melena, occurring four or more times per year, lasting 10 days or more each time. At the August 2012 hearing, the Veteran confirmed that the episodes last ten days to two weeks each time. The examiner also suggested that the Veteran has hypertrophic gastritis that is chronic with small nodular lesions and symptoms. The laboratory testing relied upon for these findings included the November 2010 upper endoscopy, a November 2010 negative helicobacter pylori test, and a March 2011 CBC report. Shortly following this examination, the RO increased the Veteran's rating to 20 percent disabling. At the Travel Board hearing in August 2012, the Veteran further elaborated on the symptoms he experiences during an episode of gastritis. He testified to having bad pain lasting sometimes two weeks, with virus like symptoms including weakness. He reported periods of constipation followed by ongoing diarrhea for days. He also reported vomiting, during which he often sees specks of blood, as well as ongoing weight loss. The Board remanded the matter following this hearing for a new examination due to seemingly worsening symptoms. On VA examination in January 2013, the examiner noted the Veteran has having gastritis and not as having an ulcer of any sort. However, the examiner clearly stated that updated diagnostic testing was needed in order to determine whether any previous ulcer had returned. Again, there was no report of anemia, but there was report of four or more episodes per year of episodes of symptoms lasting one to nine days, including weight loss, nausea, vomiting, mild hematemesis, and melena. None of the Veteran's episodes were described as incapacitating. Neither hypertrophic or atrophic gastritis was noted in the body of the examination report, however the examiner's opinion clearly discussed the existence of gastritis. As to whether the Veteran's symptoms are due to the service-connected gastritis, the examiner noted that additional upper GI studies were required and that the Veteran's reported "IBS type symptoms" have not been followed by his physician. The examiner did note that the Veteran is treated with dicyclomine, which is commonly used for IBS, and which can cause weight loss and abdominal pain. The Board again remanded this matter in May 2013 in order for a new examination to be obtained with the appropriate diagnostic testing, to included updated EGD. In June 2013, the Veteran again underwent VA examination. The examiner noted the history of gastric ulcer in 1954, with gastritis reported per the November 2011 endoscopic evaluation. At the time of this examination, the Veteran's weight was noted to be 170 pounds, thus showing ongoing weight loss. This examiner noted that there was no evidence of gastric or duodenal ulcer as of the November 2011 EGD, and that the findings at that time included mild diffuse gastritis, but not hypertrophic gastritis. The examiner again stated that new EDG and upper GI studies were needed before symptoms and the diagnosis could be reconciled. The RO ordered this testing and an addendum report was completed in August 2013 by a different physician, but a VA resident doctor nonetheless. This physician noted that the Veteran underwent EGD/colonoscopy in July 2013, which revealed mild gastritis and no ulcers. The physician confirmed review of the Veteran's claims file, including notation of the treatment and symptoms during active service, and concluded that the ulcer noted during service is the "same process that [is] currently ongoing." Thus, the Board will not separate the Veteran's symptoms into service-connected and non-service-connected aspects, and, rather, will assess the entire body of evidence throughout the course of this appeal with the rating schedule. Throughout the course of this claim and appeal, the Veteran has carried an active diagnosis related to his service-connected ulcer, which has been noted as ongoing gastritis. The most recent VA examiner confirmed that current symptoms are the ongoing process of the in-service ulcer. His primary symptoms are consistently reported throughout the appeal period as ongoing weight loss, epigastric pain, episodes of melena, diarrhea, vomiting and nausea that last ten days to two weeks, four or more times per year. Although the episodes have not been characterized as incapacitating, they have been characterized as severe. Anemia has not been shown. The Board finds that the Veteran's symptoms most closely approximate the rating criteria for a 40 percent rating under DC 7305. While the symptoms have been noted as severe, and the Board observes that a 40 percent rating is noted as being for "less than severe," the specific manifestations experienced by the Veteran in this case most closely resemble that of a moderately severe disability. Anemia is not present, but ongoing weight loss is. And while the episodes have not been definitively described as incapacitating, the episodes have been described as severe and lasting 10 days or more in duration at least four or more times per year. Thus, while not meeting every particularity of the rating criteria, the Board finds that the Veteran's symptoms most closely approximate that needed for a 40 percent rating under DC 7305. While DC 7305 awards a 60 percent rating for severe episodes, which the Veteran is noted to have, these episodes are described in the rating schedule as including pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena with manifestations of anemia and weight loss productive of a definite impairment of health. Again, the evidence does not show anemia and the combination of symptoms experienced by the Veteran is not shown to have caused a definite impairment of health. The Board, therefore, finds that the criteria for a 60 percent rating under DC 7305 are not met. Also, a 60 percent rating under DC 7307 for gastritis requires a showing of severe hemorrhages or large ulcerated or eroded areas, neither of which is shown by the evidence in the Veteran's record. A 60 percent rating is not warranted under either DC 7305 or DC 7307. In summary, a rating of 40 percent, but no more, for the Veteran's service-connected hypertrophic gastritis (previously diagnosed as duodenal ulcer) is warranted throughout the course of the Veteran's claim and appeal. 38 C.F.R. § 4.114, Diagnostic Code 7305 (2013). To the extent that the Veteran alleges that his rating is warranted prior to the date of his increased rating claim, October 25, 2010, as alleged at the Travel Board hearing, it should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). In this case, the Board indeed reviewed the evidence dated back to October 2009, however it does not show that an increase was warranted prior to the date of the Veteran's claim. The Veteran's clinical treatment note, dated on October 26, 2010, shows that the Veteran had a colonoscopy several years prior, but had no follow up treatment since. The physician reviewed an EGD report dated in 2002 and noted "last endoscopic colon screening in '07 (wnl per report - 2 done here previously)." Thus, there is no suggestion in the record that the Veteran had symptoms rising to the level of severity described after October 25, 2010, at any time within the year prior, as no treatment was sought. There is no basis upon which the Board can assign the rating prior to the date of the Veteran's claim, October 25, 2010. Finally, the Board has also considered whether the disability at issue should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (2013). In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The schedular evaluation in this case is adequate. A rating in excess of that assigned is provided in the rating schedule for the Veteran's service-connected disability at issue, as noted above, but the medical evidence reflects that the disability does not show the symptomatology warranting such a higher rating. See 38 C.F.R. § 4.1 (2013). The Veteran's symptoms are accounted for by the assigned schedular ratings. Moreover, the medical findings during the appeal period in question do not indicate that this service-connected disability causes "marked" interference with employment. The Veteran, in fact, is retired due to age, not disability. The record does not reflect (or suggest) any symptoms/impairment of the disability not encompassed by the schedular criteria. There is also no evidence of frequent periods of hospitalization due to this service-connected disability. Consequently, the Board finds that the criteria for referral for the assignment of an extraschedular evaluation for the hypertrophic gastritis (previously diagnosed as duodenal ulcer) during the appeal period pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to a rating of 40 percent, but no more, for the Veteran's service-connected hypertrophic gastritis (previously diagnosed as duodenal ulcer) is granted from October 25, 2010, subject to the regulations applicable to the payment of monetary benefits. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs