Citation Nr: 1337891 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-16 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for erosive gastritis, duodenitis, and esophageal nodule (claimed as gastritis). REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to February 1988, with periods of active duty for training and inactive duty training with the Army National Guard. This matter came to the Board of Veterans' Appeals (Board) from a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for erosive gastritis, duodenitis, and esophageal nodule, assigning a 30 percent disability rating, effective August 17, 2007. This matter was remanded in November 2012. As detailed in the Introduction of the November 2012 Board decision, the issues of whether new and material evidence has been received to reopen claims of service connection for degenerative arthritis, diabetes mellitus, heart condition, hemorrhoids, and renal failure; and, entitlement to service connection for erectile dysfunction, loss of balance, a shoulder condition, and a thyroid disorder have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction of these issues and they are referred to the AOJ for appropriate action. FINDING OF FACT The service-connected gastritis, duodenitis, and esophageal nodule are not manifested by severe hemorrhages, or large ulcerated or eroded areas. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 30 percent for erosive gastritis, duodenitis, and esophageal nodule, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7307 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the November 2012 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Indeed, that remand ordered that VA outpatient treatment records be associated with the claims folder. Treatment records dated from 2007 have been associated with the claims folder, and treatment records dated from February 2008 to February 2013 have been associated with the Virtual VA folder. Further regarding the duty to assist, the evidence of record contains the Veteran's service treatment records. The Veteran was afforded a VA examination in October 2011. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the initial increased rating issue on appeal. Criteria & Analysis 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). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.114. The Board points out that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. 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 elevation. 38 C.F.R. § 4.114, Diagnostic Code 7307 contemplates a rating for hypertrophic gastritis, identified by gastroscope. A 60 percent evaluation, the highest schedular rating available under this diagnostic code, is assigned for chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas; other ratings under this code do not provide an increase. A 30 percent evaluation is assigned for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms. A notation to Diagnostic Code 7307 indicates that atrophic gastritis is a symptom of a number of diseases, including pernicious anemia. Based upon review of the medical evidence, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran's erosive gastritis, duodenitis, and esophageal nodule. Indeed, the VA examination reports and VA outpatient treatment reports do not reflect chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas. Initially, the Board notes that VA outpatient treatment records reflect a history of gastritis without mention of hemorrhage. The September 2007 VA examination report reflects his last episode of vomiting three weeks prior, which was not bloody. He denied a history of melena or diarrhea but reported mild constipation. He reported occasional non-colicky abdominal pain in the lower abdomen but no distension. There were no significant changes in weight. The examiner referenced a July 2007 upper endoscopy showing small esophageal nodule at 30 centimeters from gums, erosive gastritis and erosive duodenitis. In October 2008, while hospitalized on an inpatient basis at a VA facility for unrelated reasons, the Veteran reported GI bleeding. He reported an episode of melena 2 days prior and 4 episodes of bright red vomiting. He reported abdominal discomfort and a burning-like sensation in his epigastric and chest area. He denied coffee-ground, hematochezia, NSAID's or ASA use, weight loss, loss of appetite, early satiety, jaundice, fever, chills, or any other symptoms. He reported cocaine use one month prior but tested positive 3 days earlier. The examiner noted that the use of cocaine can cause vasoconstriction and ischemia which may result in gastrointestinal ulceration, infarction, perforation, and ischemic colitis. Upon evaluation, a rectal examination was negative and based on history and physical examination it was noted that he could have an erosive gastritis or small tear after vomiting. No endoscopic procedure was needed. In October 2009, the Veteran reported severe gastric pain. The assessment was severe gastritis with evidence of erosive gastritis and duodenitis per the last upper endoscopy. It was noted that he has occasional episodes of nausea and a few months prior vomiting with blood. A March 2010 VA treatment record reflects complaints of nausea and vomiting with one episode of hematemesis. The assessment was recent episode of upper GI bleeding. The October 2011 VA examination report reflects no neoplasm; no periods of incapacitation due to stomach or duodenal disease; no episodes of abdominal colic, nausea or vomiting or abdominal distention; no gnawing or burning pain; and, no episodes of hematemesis or melena; and, no nausea, vomiting, or diarrhea. There were no signs of significant weight loss, malnutrition, or anemia. The examiner noted that a June 2010 endoscopy showed small hiatal hernia and gastritis with normal esophagus and duodenum. While acknowledging that the Veteran has experienced GI bleeding, the medical evidence does not show severe hemorrhages or large ulcerated or eroded areas due to his gastritis. His gastritis is manifested by occasional episodes of nausea, heartburn, and vomiting, with irregular hematemesis. Thus, the criteria for a 60 percent disability rating have not been met. The Board has also considered other digestive disability diagnostic codes contained in 38 C.F.R. § 4.114. Per Diagnostic Code 7305, a 60 percent rating is warranted for 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. Again, while the Veteran does experience occasional vomiting or hematemesis, the medical evidence does not reflect anemia or weight loss due to his gastritis with duodenitis. As detailed above, the examination reports specifically note that there was no weight loss or anemia associated with his gastritis. Diagnostic Code 7203 (stricture of the esophagus) has also been considered in light of the diagnosis of esophageal nodule, but the medical evidence does not show that the Veteran has stricture of the esophagus or that his esophageal condition only permits liquids. The Board finds that a separate rating is not warranted in this case as Diagnostic Code 7307 contemplates all of the symptomatology associated with his service-connected disability. Assignment of a separate evaluation for duodenitis or esophageal nodule would constitute impermissible pyramiding based on the manifestations that were considered in assigning the 30 percent rating. See 38 C.F.R. 4.14. 38 C.F.R. § 4.114 makes clear that ratings under Diagnostic Codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. Instead, a single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds the severity of the Veteran's service-connected gastritis, duodenitis, and esophageal nodule, is fully contemplated by the rating criteria. There is nothing exceptional about the Veteran's service-connected disability. The degree of disability exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). The March 2011 VA examiner opined that the Veteran was able to obtain and sustain a financially gainful job of regular type as a result of his gastritis. While the Veteran has raised the issue of unemployability, it appears to be with respect to other nonservice-connected conditions. His only other service-connected disability is degenerative joint disease of the right knee, rated 20 percent disabling. The Board notes that entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities was denied in an April 2013 rating decision. To date, the Veteran has not filed a notice of disagreement. There is no basis for granting entitlement to a TDIU based on the Veteran's service-connected disabilities. In summary, for the reasons and bases expressed above, the Board has concluded that a disability rating in excess of 30 percent for erosive gastritis, duodenitis, and esophageal nodule, is not warranted. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to a disability rating in excess of 30 percent for erosive gastritis, duodenitis, and esophageal nodule, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs