Citation Nr: 1341385 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 08-30 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for spasticity duodenum, evaluated as 10 percent disabling prior to August 30, 2011. 2. Entitlement to an increased rating for spasticity duodenum, evaluated as 20 percent disabling since August 30, 2011. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that numerous documents in the Spanish language have been translated to English. In June 2011, the Board remanded the case to the RO for additional development. During the course of the appeal, in a March 2012 rating decision, the Agency of Original Jurisdiction (AOJ) assigned an increased rating of 20 percent for the service-connected spasticity of duodenum, effective August 20, 2011. As this rating is less than the maximum benefit available, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The claim has been recharacterized as shown on the title page, to depict the staged rating assigned. A review of the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT For the period on appeal, the Veteran's spasticity duodenum was productive of continuous moderate manifestations including nausea and epigastric pain; however, it was not productive of moderately severe manifestations resulting in anemia, weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration, at least four or more times per year. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating in excess of 20 percent for service-connected spasticity duodenum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Codes 7399-7305 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). The April 2007 VCAA letter explained what evidence was necessary to substantiate the Veteran's claim for an increased rating for spasticity duodenum. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the April 2007 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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). In this case, VA obtained the Veteran's service treatment records and all of the identified VA treatment records. He did not identify any private treatment records. In addition, the Veteran underwent VA examinations in September 2009 and November 2009 to obtain medical evidence as to the nature and likely etiology of the claimed disability. In June 2011, the Board remanded the claim for additional development. In response to those remand directives, the AOJ afforded the Veteran a VA examination in August 2011, requested the Veteran provide information regarding his treatment providers including private medical records from Dr. E.T., and obtained outstanding VA treatment records. The claims file includes VA treatment records from the VA Medical Center in San Juan dated July 2006 to November 2006, June 2009 to March 2011, and from January 2012 to February 2012. The Board notes that in his February 2007 claim, the Veteran indicated that he had been treated at the VAMC in Rio Piedras, Puerto Rico. The June 2011 Board remand instructed the RO/AMC to obtain the Veteran's treatment records from the San Juan Vet Center located in Rio Piedras, Puerto Rico. The RO/AMC, however, obtained only updated treatment records from the VAMC in San Juan, Puerto. As significant treatment records from the VAMC in San Juan, Puerto Rico, are associated with the Veteran's claim file and the Veteran does not contend that his Vet Center psychological records are relevant to the issue on appeal, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Law and Regulation Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (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). The Veteran was previously awarded service connection and assigned an initial disability rating for spasticity duodenum. An appeal of the initial rating is not before the Board; rather the Veteran seeks in increased rating. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. The Court extended entitlement to staged ratings to claims for increased disability ratings where "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, 511 (2007). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. The Veteran has been service-connected for spasticity duodenum rated at 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Codes 7399-7305 for the period prior to August 30, 2011, and 20 percent disabling from August 30, 2011. A hyphenated diagnostic code reflects a rating by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (2013) (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). The Board finds DC 7305 to be the appropriate basis of rating the Veteran's spasticity duodenum, based on the rating code encompassing the location and disabling nature of the disability presented. 38 C.F.R. § 4.20. Pursuant to 38 C.F.R. § 4.114 , Diagnostic Code 7305, a 10 percent rating is warranted for a mild ulcer with recurring symptoms once or twice yearly. A 20 percent rating requires a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations. A 40 percent rating is warranted for a moderately severe ulcer with less than severe symptoms, but with impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least 4 or more times a year. A 60 percent rating requires a severe duodenal ulcer with pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, manifestations of anemia, and productive of definite impairment of health. 38 C.F.R. § 4.114 , Diagnostic Code 7305. The rating schedule provides guidance in the evaluation of gastrointestinal disorders. In particular, 38 C.F.R. § 4.112 highlights the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. Analysis After reviewing the entire claims folder, the Board finds that the Veteran's service-connected spasticity duodenum has been no more than 20 percent disabling for the entire period on appeal. A July 2006 VA emergency department note lists duodenal ulcer on the active problem list. A September 2006 VA primary care note indicated a review of gastrointestinal systems was negative. The report of a May 2007 VA examination reflects the Veteran's complaints of worsening symptoms including daily acid reflux, bloating, and epigastric discomfort. He denied vomiting and hematemesis or melena, but reported regurgitation and occasional nausea. He reported the use of over the counter medications with only mild improvement. On physical examination, there was no specific site of any ulcer disease. The Veteran reported weight loss of 10 pounds for an unknown reason. There were no signs of anemia. He reported stress situations worsen his condition. The final diagnosis was gastroesophageal acid reflux. The report of an August 2011 VA examination reveals the Veteran denied hospitalizations or emergency room visits due to duodenitis. He reported "persistent epigastric pain" rated as a 5 to 6 out of 10 associated with heartburn and reflux of acid content. He denied periods of incapacitation due to stomach or duodenal disease. He reported weekly nausea with no history of vomiting or diarrhea, and early satiety. On physical examination, there were no signs of significant weight loss, malnutrition, nor anemia. In fact, there was a 20 percent weight gain compared to baseline. Review of an x-ray performed October 2011, showed thickened duodenal folds as seen with duodenitis. There was a questionable deformed duodenum; the examiner noted it was unclear if it was related to technique versus true deformity and referred the Veteran for an upper endoscopy for direct visualization. The Veteran reported he retired due to a psychiatric problem. The examiner noted there were no effects of the service-connected disability on the Veteran's usual daily activity. Finally, the examiner stated that the Veteran's spasticity duodenum is moderate with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A January 2012 VA treatment record indicated the Veteran had an upper gastrointestinal endoscope that showed a small lineal ulcer at the distal esophagus, a small hiatal hernia, diffuse non-erosive gastritis status post CLO test, and a normal duodenum. The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with spasticity duodenum such as nausea and epigastric pain, which are capable of lay observation (as opposed to anemia, for example, which is identified by in part by hemoglobin levels, 60 Fed. Reg. 49225 (Sept. 22, 1995)). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). For the entire period on appeal, the Veteran's service-connected spasticity duodenum is manifested with moderate manifestations and is consistent with a 20 percent rating under Diagnostic Code 7305. On VA examination in May 2007, the Veteran reported weight loss, but his baseline weight was not reported and anemia was absent. Although there was no specific site of any ulcer disease, the May 2007 VA examination report confirmed the Veteran reported worsening symptoms, including nausea and daily epigastric pain. As such, the Board finds that the Veteran's symptoms more nearly approximate the criteria for a 20 percent rating prior to August 30, 2011. Having found that a rating of 20 percent for the service-connected disability is warranted for the entire period on appeal, the Board has considered whether a rating in excess of 20 percent is warranted. The preponderance of the evidence is against a rating for spasticity duodenum higher than the 20 percent already assigned after August 310, 2011. Notwithstanding the frequency of his reported symptoms, the August 2011 examiner did not describe the Veteran's symptoms as moderately severe. Further, the Veteran denied anemia and did not report substantial weight loss. Indeed the August 2011 VA examination report indicated that he gained weight. He also denied any incapacitating episodes. In that regard, there is no indication in the record that the Veteran has been required to undergo bedrest, nor is there any evidence that the Veteran's service-connected disability has interfered with activities of daily living. Finally, a January 2012 endoscopy showed a normal duodenum which is not consistent with more severe symptomology. Thus, the Veteran's spasticity duodenum has been no more than 20 percent disabling throughout the entire period on appeal. In reaching this decision, the Board has specifically considered the appellant's pleadings and testimony. In essence, he has predominantly reported reflux, bloating, and epigastric pain. The Veteran is competent to report such symptoms and the Board finds his reports of symptomatology to be credible. In this case, however, the Board finds the objective medical findings by skilled professionals are more persuasive which, as discussed above, are against higher ratings than those already assigned. In short, the Board finds that the Veteran's statements as to his symptoms are competent and generally credible; however, where these statements have conflicted with the findings on examination, the Board finds that the objective examination findings of the trained health care professionals to be more probative and entitled to greater weight than the Veteran's lay statements. In essence, the lay evidence, while accepted as credible, does not provide a basis for higher evaluations than that already assigned herein. The Board has also considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected spasticity duodenum. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must 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 Veteran's level of disability and symptomatology is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 disability picture has such factors 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. The record reflects that the Veteran has not required frequent hospitalizations for his service-connected disability. The competent medical evidence of record shows that current pathology, mainly nausea and epigastric discomfort, are contemplated by the provisions of the rating schedule. Accordingly, referral for extraschedular consideration is not warranted. Thun, 22 Vet. App. at 115. Finally, the Veteran has not contended, and the evidence does not otherwise indicate that the service-connected spasticity duodenum has rendered the Veteran unemployable. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating of 20 percent, but not higher for spasticity duodenum, for the period prior to August 30, 2011, is granted subject to the law and regulations governing payment of monetary benefits. A rating in excess of 20 percent for spasticity duodenum for the period from August 30, 2011, is denied. ____________________________________________ J. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs