Citation Nr: 1335189 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-40 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for hiatal hernia with associated gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted service connection for hiatal hernia with associated GERD and IBS, and assigned a 10 percent rating effective October 1, 2006. The Veteran testified at a Travel Board hearing in August 2012 before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The claim was then remanded by the Board in January 2013 for additional development, and now returns to the Board for further review. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDINGS OF FACT 1. GERD is not productive of a considerable impairment of health. 2. Prior to May 5, 2010, IBS was manifested by chronic diarrhea; constipation was not demonstrated. 3. From May 5, 2010, IBS was manifested by alternating episodes of diarrhea and constipation, with accompanying abdominal distress. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346 (2013). 1. The criteria for a separate xx rating for IBS have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7319 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, the RO properly issued a September 2009 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). As noted above, the Veteran testified at a Travel Board hearing in August 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above 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. Here, during the hearings, the Acting VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Notably, the claim was previously remanded by the Board to provide the Veteran the opportunity to identify additional records pertinent to his claim, as well as to afford him a new VA examination. Here, the Veteran's service treatment records, VA treatment records, private treatment records, lay statements, and hearing transcript have been associated with the claims file. In January 2013, he was asked to provide the names and contact information of any additional medical facilities that may have treated his service-connected condition. In May 2013, he submitted a form indicating that he had no further evidence to submit. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). 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 VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's GERD and IBS conditions. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board's January 2013 remand directives have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. 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. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's hiatal hernia with associated GERD and IBS is rated under Diagnostic Code 7319-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. A 0 percent rating is assigned when IBS is mild, with disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. A 10 percent evaluation is warranted when IBS is moderate, with frequent episodes of bowel disturbance with abdominal distress. Id. A 30 percent evaluation is warranted when IBS is severe with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. A 60 percent rating for hiatal hernia or GERD is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn) and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent rating is warranted for hiatal hernias that manifest two or more of the symptoms for the 30 percent evaluation of less severity. Id. B. Evidence The Veteran underwent a VA examination in September 2006. With respect to his GERD, he reported sleep disturbance, epigastric and scapular pain, chest pressure, frequent belching, reflux and regurgitation, and bloating at the waist. His body weight was unaffected. With respect to IBS, he reported chronic diarrhea, with lethargy, fatigue, dehydration, and bloating. He also experienced abdominal pain. Symptoms occurred more than two-thirds of the year. Diarrhea occurred 5 to 6 times daily. He reported that he had to be near a bathroom. He treated both conditions with medication. VA records dated April 2008 reflect complaints of occasional gastric reflux and dysphagia. In September 2009, the Veteran complained of a dull, aching abdominal pain that had its onset 1 month earlier. He rated the pain as 4/10 to 5/10 in severity. He stated that it interfered with sleep, activities of daily living, work, relations with others, and general life enjoyment. The treating physician noted that GERD and IBS were not responding to conservative measures. Additional records from November 2009 noted that Nexium used to treat GERD exacerbated IBS. He was advised to follow a high-fiber, low fat, lactose free diet with minimal caffeine. Another VA examination was conducted in May 2010. With respect to GERD, the Veteran reported being awakened by reflux nightly, resulting in daytime sleepiness. He denied any history of nausea, vomiting, or esophageal trauma. He experienced dysphagia weekly, and had particular difficulty with solid food. He experienced pyrosis and regurgitation several times a week. Examination revealed no sign of anemia. The examiner noted that GERD resulted in mild effects on chores, shopping, exercise, sports, recreation, traveling, and feeding. An examination for IBS noted weekly alternating symptoms of diarrhea and constipation. The Veteran also experienced moderate abdominal pain on a weekly basis, usually lasting 1 to 2 hours. There were also reported episodes of abdominal distention. In a May 2010 statement, the Veteran stated that the severity of his conditions had increased and impacted his sleep. He awakened nightly between 1:30 am and 4 am by GERD and had to drink water and take antacids. He stated that IBS flared as a result of his GERD medications. GERD resulted in nightly abdominal pain with substernal pain and regurgitation. He added that, during meals, he had to stop and stand up in order to continue swallowing due to a type of bloating he experienced. He stressed that his prescribed medications aggravated the IBS condition. His IBS resulted in constant abdominal pain from bloating. He had multiple bouts of severe diarrhea for several days, followed by 1 to 2 days of constipation. He had to plan work and travel around toilet availability. In a September 2011 pre-operative questionnaire, the Veteran reported intermittent sleep due to a nightly reflux problem. The Veteran testified at an August 2012 Travel Board hearing. He stated that he had to go to the bathroom multiple times per day, which was particularly difficulty when traveling by aircraft. He could not concentrate on his job unless there was a bathroom nearby. He testified that the medication for his GERD caused stomach upset and aggravated his IBS. He had been prescribed the same medications over the years without significant relief. He felt he had to choose between treating his GERD and exacerbating his IBS, or not treating his GERD with regular medication and putting up with waking up at night to take Tums. Another VA examination was conducted in April 2013. With respect to IBS, the Veteran reported 5 to 7 watery bowel movements per day for about 5 days a week. He also experienced abdominal bloating with gas, as well as an intermittent cramping pain in the abdomen that improved after a bowel movement. Abdominal distress was more or less constant. There was no associated weight loss or malnutrition. With respect to GERD, the Veteran treated his condition with diet, avoiding alcohol, raising the head of his bed, and Tums. He stated that GERD symptoms caused him to wake up at night and impaired his resting. He also complained of reflux, pyrosis, regurgitation, and substernal arm pain. C. Analysis The Veteran is currently assigned a single rating for GERD and IBS. Based on the evidence, the Board finds that separate ratings are warranted. With respect to GERD, a rating in excess of 10 percent is not warranted. A 10 percent rating is warranted for hiatal hernias that manifest two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn) and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Here, the evidence clearly demonstrates that the Veteran's GERD has manifested all the symptoms listed in the rating criteria. However, the element that differentiates the 30 percent rating from the assigned 10 percent rating is whether GERD is "productive of considerable impairment of health." In this case, the evidence does not reflect any findings of anemia, melena, weight loss, or other manifestations that would suggest a considerable impairment of the Veteran's health. While the Veteran reported sleep disturbance associated with his nightly reflux, that alone is not a sufficient impairment of health as contemplated by the higher 30 percent rating. His symptoms of pyrosis, substernal pain, regurgitation and dysphagia, with or without medication, are all contained within the assigned 10 percent rating. Because the rating criteria associated with IBS are distinct from those associated with GERD, a separate rating is appropriate for the Veteran's IBS. Prior to May 5, 2010, a 10 percent rating is warranted. Evidence during this period reflects complaints of frequent diarrhea with accompanying abdominal distress. However, there is no indication that IBS also resulted in constipation and constant abdominal distress consistent with the 30 higher rating. From May 5, 2010, the date of the VA examination, a 30 percent rating is warranted. During that examination, and in a subsequent written statement, the Veteran reported alternating symptoms of diarrhea and constipation, along with complaints of abdominal pain and distention. These reports are consistent with the higher 30 percent rating, which is the maximum available under Diagnostic Code 7319. D. Extraschedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's GERD and IBS with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Veteran's symptoms of pyrosis, dysphagia, regurgitation, diarrhea, constipation, and abdominal pain are all expressly contemplated by the rating criteria for the two disabilities. There is no indication that either of the Veteran's conditions results in any symptoms that fall so far outside the rating schedule as to render it in adequate. ORDER An initial rating in excess of 10 percent for hiatal hernia with GERD is denied. A separate 10 percent rating for IBS is granted prior to May 5, 2010, subject to the laws and regulations governing the award of monetary benefits. A separate 30 percent rating for IBS is granted from May 5, 2010, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs