Citation Nr: 1342529 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 08-30 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an increased rating (evaluation) in excess of 30 percent for reflux esophagitis with peptic ulcer symptoms. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1970 to March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which denied an increased rating in excess of 30 percent for the service-connected reflux esophagitis with peptic ulcer symptoms. During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Augusta, Maine which now has jurisdiction over the claim on appeal. In November 2008, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the hearing transcript is associated with the claims file. In a July 2012 decision, the Board denied an increased rating in excess of 30 percent for reflux esophagitis with peptic ulcer symptoms. The Veteran appealed the July 2012 Board decision denying an increased rating in excess of 30 percent for reflux esophagitis with peptic ulcer symptoms to the United States Court of Appeals for Veterans Claims (Court). In a June 2013 Order, the Court granted a Joint Motion for Remand (JMR), vacated the July 2012 Board decision denying an increased rating in excess of 30 percent for reflux esophagitis with peptic ulcer symptoms, and remanded the claim to the Board for readjudication in accordance with the JMR. The issues of entitlement to service connection for bilateral hearing loss and tinnitus have been raised by the record in a June 2012 informal hearing presentation by the Veteran's representative, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The service-connected reflux esophagitis with peptic ulcer symptoms is characterized by severe pain, periodic vomiting, recurrent hematemesis with manifestations of weight loss productive of definite impairment of health. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an increased rating of 60 percent disabling, but no higher, for service-connected reflux esophagitis with peptic ulcer symptoms have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.114, Diagnostic Codes 7305-7346 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of an increased rating in excess of 30 percent disabling for reflux esophagitis with peptic ulcer symptoms has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of the issue on appeal, i.e., the maximum schedular disability rating of 60 percent, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability 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. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), 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." Diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113 (2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis of an Increased Rating for Service-Connected Reflux Esophagitis The Veteran contends that an increased rating in excess of 30 percent is warranted for the service-connected reflux esophagitis with peptic ulcer symptoms due to more severe symptoms during the appeal period. On a VA Form 21-4142 dated in February 2008, the Veteran wrote that he sometimes vomited blood, choked at night and could not get his breath, and was in a lot of pain, which was sometimes severe. In the substantive appeal (on VA Form 9), the Veteran wrote that his stomach condition had worsened, including that a doctor told him that his hernia was larger. Through his representative, the Veteran contends that the symptoms of daily chest pain, heartburn, constant efflux, regurgitation, melena, and vomiting more than once a day, and throwing up blood monthly support a disability rating of 60 percent. The representative asserts that the Veteran has all the symptoms required for a 30 percent disability rating, and in addition has melena, diarrhea, hematemesis, and chronic fatigue. Pursuant to the rating criteria for the digestive system, reflux esophagitis with peptic ulcer symptoms has been rated 30 percent disabling. See 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7346 (2013). The rating criteria under Diagnostic Code 7305 for duodenal ulcer provide, in pertinent, a 40 percent rating when moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted when severe; or 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. Pursuant to the schedule of ratings for the digestive system, specifically under diagnostic codes 7345 and 7354, "incapacitating episodes" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114. The criteria under Diagnostic Code 7346 for hiatal hernia provide, in pertinent part, a 30 percent rating for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 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. For purposes of evaluating conditions under 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. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. 38 C.F.R. § 4.112 (2013). "Baseline weight" means the average weight for the two-year-period proceeding onset of the disease. Hematemesis is defined as "the vomiting of blood." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 842 (31st ed. 2007). After a full review of the record, the Board concludes that an increased rating of 60 percent for the service-connected reflux esophagitis with peptic ulcer symptoms is warranted under Diagnostic Code 7305. The evidence of record during the appeal period indicates that the Veteran has severe pain, periodic vomiting, recurrent hematemesis with manifestations of weight loss productive of definite impairment of health. With regard to symptoms of vomiting, hematemesis, melena, and anemia (symptoms of a 60 percent rating under 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7346), in a February 2008 VA Form 21-4142, Authorization and Consent to Release, the Veteran reported the service-connected disability had worsened due to severe symptoms, including sometimes vomiting blood. In a May 2008 telephone call to a VA outpatient treatment facility, the Veteran reported "throwing up emesis" approximately 90 minutes after eating and being under a lot of stress; however, he did not arrive to seek treatment due to lack of transportation. At the November 2008 DRO hearing, the Veteran's representative asked the Veteran if he has had episodes of blood in his vomit or red streaks. The Veteran answered in the affirmative, probably 10 to 12 times a year, occurring two or three times a week, as well as described his stool as, a lot of times, black, greasy, and diarrhea. Subsequently, the Veteran informed the December 2008 VA examiner of having hematemesis 10 to 12 times per year and diarrhea with black stools. In light of the Veteran's reported symptomatology, both VA examiners noted the Veteran's medical history to include vomiting on a weekly basis, and other significant history included occasionally seeing blood streaks in vomitus. Following both VA clinical evaluations, there were no signs of anemia, and the June 2008 VA examiner further noted no signs of hematemesis or melena. Additionally, the Veteran denied blood or melena at a December 2008 VA outpatient treatment session. During the appeal period, the Veteran's weight was documented, in pounds, as 239 due to an inability to exercise after surgery on the right knee (April 2007 and June 2007), 211 (August 2007), 219 (October 2007), 209 (June 2008), 203 (July 2008), 208 (August 2008), 200 and 221 (December 2008), and 221 (January 2009). While such evidence of record does not indicate the Veteran underwent "substantial weight loss" as defined for VA purposes for rating disabilities of the digestive system under 38 C.F.R. § 4.114, it demonstrates "weight loss" under 38 C.F.R. § 4.114, Diagnostic Code 7305. The evidence of record during the appeal period also indicates that the Veteran's manifestations related to the service-connected reflux esophagitis with peptic ulcer symptoms are productive of definite health impairment. Pursuant to VA outpatient treatment sessions, the Veteran complained of bloating, gas, discomfort, and easily feeling full in April 2007. He also denied having nausea, vomiting, diarrhea, and constipation, as well as jaundice, in April 2007 and October 2007. Following a clinical evaluation, the October 2007 examining physician documented the Veteran had gastroesophageal reflux disease (GERD), the Veteran does well if he takes Prilosec, and there were no objective findings of blood, dysphagia, or abdominal pain. In July 2008, as noted in the December 2008 VA examination report, the Veteran underwent upper gastrointestinal (UGI) series. Testing results revealed, in pertinent part, moderate esophageal dysmotility evident and severe gastroesophageal reflux, moderate to large sized hiatal hernia, no thickening of gastric folds, normal course of stomach, normal gastric antrum and fundus in stable and appearance, no stricture or mass of the esophagus, and no evidence of esophagitis. The Veteran testified at the November 2008 DRO hearing as to being tired all the time, specifically described as being weak, having no energy, and not wanting to get out of bed. At a December 2008 VA outpatient treatment session, he also complained of fatigue all the time and having no energy. Most recently, the Veteran informed the December 2008 VA examiner of being constantly tired and weak three to four times per week, and having daily and constant acid reflux with daily pain. Following the evaluation, the VA examiner characterized the Veteran's overall general health as fair. The December 2008 VA examiner also concluded that the reflux esophagitis has a severe effect of certain, usual daily activities, including chores, shopping, exercise, sports, recreation, and feeding, as well as a moderate effect on the ability to travel. The Board acknowledges the Veteran's reported history of symptomatology regarding the service-connected reflux esophagitis with peptic ulcer symptoms and that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno, 6 Vet. App. at 470. Specifically, such history includes as noted above, as well as choking at night and pain as noted on the February 2008 VA Form 21-4142. During the November 2008 DRO hearing, the Veteran further reported having constant, almost daily, acid reflux, in which at night he will wake up and start choking due to stuff in his lungs that comes up gray in color. He also testified having severe pains, like a constant ache in his stomach, which a treating physician characterized as hiatal hernia pain or something like that according to the Veteran. Fully considering the lay and medical evidence regarding the service-connected reflux esophagitis with peptic ulcer symptoms and resolving reasonable doubt in the Veteran's favor, the reported symptomatology noted above demonstrates a disability picture that more nearly approximates the criteria required for a 60 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7305. 38 C.F.R. §§ 4.3, 4.7. While the evidence does not reveal anemia, the recorded weight loss coupled with manifestations of severe pain, vomiting, and hematemesis are productive of definite impairment of health. A 60 percent disability rating represents the maximum schedular evaluation available under the schedular criteria of Diagnostic Codes 7305, 7346. Additionally, the Board finds no other applicable diagnostic codes which would afford the Veteran a higher disability evaluation. See Schafrath, 1 Vet. App. at 589. Extraschedular Consideration The Board has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2013); 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 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's service-connected reflux esophagitis are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 7305 and 7346, specifically provide for disability ratings based on duodenal ulcer and hiatal hernia that manifest in pain, vomiting, hematemesis or melena, anemia, and weight loss. See 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7346. In this case, considering the lay and medical evidence, service-connected reflux esophagitis has been manifested by severe pain, vomiting, hematemesis, and weight loss, which are productive of health impairment; these findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations that affect chores, shopping, exercise, sports, recreation, feeding, and traveling. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms on his occupation and daily life, i.e., doing chores, shopping, exercising, sports, recreation, feeding, and traveling. In the absence of exceptional factors associated with reflux esophagitis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to service-connected disabilities, including reflux esophagitis with peptic ulcer symptoms. Rice v. Shinseki, 22 Vet. App. 447 (2009). In fact, the June 2008 VA examination report indicated the Veteran's period of unemployment for 10 to 20 years was due to being injured on the job that resulted in lumbar disc disease; therefore, as the issue of a TDIU is not reasonably raised by the record, it is not part of the rating appeal. ORDER An increased rating of 60 percent disabling for reflux esophagitis with peptic ulcer symptoms is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs