Citation Nr: 1337806 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-22 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for pyloric channel ulcer (ulcer) with gastroesphophageal reflux disease (GERD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had more than 10 years of active service, including a period from September 1976 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2010, the Veteran requested a Board hearing at a local VA Office. However, the Veteran withdrew his request in September 2012. See 38 C.F.R. § 20.702(e) (2011). The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. FINDING OF FACT The Veteran's pyloric channel ulcer with GERD has been manifested by epigastric distress, dysphagia, heartburn, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbances 4 times or more per year, but has not been manifested by weight loss, anemia, hematemesis, melena, or recurrent incapacitating episodes averaging at least 10 days in duration at least 4 times per year; further, his symptoms have not produced severe impairment of health. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected pyloric channel ulcer with GERD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.21, 4.111, 4.112, 4.113, 4.114, Diagnostic Codes 7305, 7346 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2011). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was provided with a notification letter in May 2011 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim, of his and VA's respective duties for obtaining evidence, and of the criteria for assigning disability ratings and assigning effective dates. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The duty to assist has also been met here. The Veteran's service records and private treatment records have been obtained. The appellant was afforded adequate VA examinations in June 2011 and October 2012. Both the examiners considered the contentions of the appellant, and provided supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although only the October 2012 examiner reviewed the claims file, the June 2011 examination is still adequate because the primary concern in an increased rating claim is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes that the Veteran requested that private medical records from a particular treatment center be obtained. The RO made an initial attempt to locate private medical records in November 2012, and a follow up request in December 2012. The RO also notified the Veteran of these attempts in November 2012 and December 2012. The November 2012 notice informed the Veteran that it is his responsibility to obtain these medical records. The December 2012 notice further instructed the Veteran to send the information or a complete release form within 30 days if the Veteran still wanted the RO to consider the evidence. To date, the Veteran has not submitted a complete release form. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Because the Veteran has not cooperated with the RO in providing enough information to enable VA to obtain these records on his behalf, no further action is necessary on VA's part. 38 C.F.R. § 3.159. II. Law and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 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. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, 7 Vet. App. at 55; Hart, 21 Vet. App. at 505. The Veteran's rating for pyloric channel ulcer with GERD has been rated as 30 percent disabling throughout the course of this claim and appeal. The rating is assigned under 38 C.F.R. § 4.114, Diagnostic Codes (DC) 7305-7346. Hyphenated DCs are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2012). Pyloric channel ulcer was originally service connected by way of a rating decision in 1984. The present claim for increased rating, including complaints of acid reflux, was filed in May 2011. The RO combined pyloric channel ulcer and GERD as one disability, and increased the rating to 30 percent disabling. This rating was then assigned under DC 7305-7346, which takes into consideration both the ulcer and the GERD. Thus, the Board will discuss the propriety of the 30 percent rating under both rating criteria to determine whether an increase is warranted under either. Gastric and duodenal ulcers are evaluated under DC 7305. A mild duodenal ulcer with recurring symptoms once or twice a year warrants a 10 percent rating. A moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging ten days in duration or with continuous moderate manifestations warrants a 20 percent rating. Moderately severe duodenal ulcer, manifested by symptoms 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 a year warrants a 40 percent rating. 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 warrants a 60 percent disability rating. 38 C.F.R. § 4.114. GERD is evaluated under the rating criteria for a hiatal hernia. A 10 percent rating is warranted for a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Lastly, a 60 percent rating is warranted 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. 38 C.F.R. § 4.114 , Code 7346. The Rating Schedule prohibits DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, from being combined with each other. A single evaluation will be assigned under the DC that 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. III. Facts In May 2011, the Veteran filed a claim for an increased rating, contending that he had been suffering from acid reflux for the past 16 months, and that he began to experience additional symptoms in the past 5 months. In particular, he complained of sour mouth, gas, and nausea. . A May 2011 VA treatment record shows that the Veteran reported heartburn and chronic sore throat. The VA physician noted that the Veteran had inadequate control of his GERD and therefore increased the Veteran's prescribed omeprazole from 20 milligrams per day to 40 milligrams per day. The Veteran was provided a VA examination in June 2011. The Veteran complained of nausea, vomiting, diarrhea, and constipation. The Veteran stated that his disability required hospitalization for one week in 1981. The Veteran complained of burning abdominal pain in the lower esophagus, caused by eating and alleviated by medication. The examination revealed no signs of weight gain or loss, no signs of anemia, and no tenderness. An upper gastrointestinal series was normal. The examiner opined that the Veteran had a pyloric channel ulcer, which mildly affected the Veteran's usual occupation and daily activities. The RO continued the 10 percent disability rating in December 2011, and the Veteran appealed. On the Veteran's August 2012 form 9, he reported symptoms of: very dry mouth; mouth, gum, and tongue sores; swollen throat; bad breath; pain in the abdomen; bloating; gas; constipation and diarrhea. He claimed he had these same symptoms every day for the past 14 months, and that the medicines were not helping. The Veteran was provided a second VA examination in October 2012. The VA examiner reviewed the Veteran's claim file and noted that the Veteran was taking Protonix, a proton pump inhibitory medication. The Veteran reported symptoms of persistently recurrent epigastric distress, dysphagia, heartburn, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbances 4 times or more per year caused by esophageal reflux. The Veteran reported that the average duration of symptoms was less than one day. The Veteran's complete blood count (CBC) was within normal limits. There were no findings of weight loss, hematemesis, melena, or esophageal stricture. The diagnoses were GERD and pyloric channel ulcer. The examiner opined that the Veteran's esophageal conditions did not affect his ability to work. In January 2013, the RO added GERD as a service connected disability and increased the disability rating of the service connected disabilities to 30 percent under DC 7346, effective May 2011. The Veteran argues that the current evaluation should be higher. IV. Analysis Applying the above criteria to the facts of the case, the Board finds that the evidence most closely approximates the disability picture contemplated for a 30 percent evaluation under the provisions of DC 7346, effective May 2011. The Board finds that DC 7346 reflects the predominant disability picture. As noted above, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. At the October 2012 VA examination, the Veteran reported symptoms of persistently recurrent epigastric distress, dysphagia, heartburn, reflux, regurgitation, substernal arm or shoulder pain, and sleep disturbances 4 times or more per year. A 60 percent rating is not warranted because the Veteran does not have symptoms productive of a severe impairment of health. There has been no hematemesis or melena. The October 2012 VA examiner found that the Veteran's disabilities did not impact his ability to work, and the June 2011 VA examiner stated that the disabilities only mildly affected the Veteran's usual occupation and daily activities. There have been no incapacitating episodes lasting at least 10 days in duration. Moreover, the June 2011 VA examination revealed no signs of weight loss or anemia, and the Veteran's CBC was within normal limits at the October 2012 examination. Consideration has been given to the potential application of other various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the potentially applicable Diagnostic Codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a higher schedular evaluation for the Veteran's claimed disability for the claim/appeal period. Rating the Veteran's disabilities under DC 7305 would result in a 20 percent rating because, according to the VA examinations, the Veteran does not have anemia, weight loss, or recurrent incapacitating episodes averaging at least 10 days in duration at least 4 times per year at any time during this appeal. For the reasons stated above, the Board finds that a preponderance of the evidence is against the claim for an increased rating in excess of 30 percent for pyloric channel ulcer and GERD, and there is no doubt to be resolved. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7 (2012). In deciding this appeal, the Board has considered whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that, in cases where a Veteran disagreed with an initially assigned disability evaluation, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. In this case, the evidence shows that the Veteran's health was not severely impaired by his service connected disabilities during the appeal period. As such, a rating in excess of 30 percent is not warranted at any point during the period on appeal. 38 C.F.R. § 4.119. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step (or element) is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. This task is to be performed by the RO or the Board. Id. The second step is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Id. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426. The Board finds that the severity of the Veteran's service-connected ulcer and GERD are fully contemplated by the rating criteria. The upper gastrointestinal disability has not resulted in frequent hospitalizations or marked interference with employment. Therefore, no extraschedular referral is required. ORDER An evaluation in excess of 30 percent for pyloric channel ulcer and GERD is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs