Citation Nr: 1526482 Decision Date: 06/23/15 Archive Date: 06/30/15 DOCKET NO. 11-03 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased initial evaluation in excess of 10 percent disabling for gastritis, duodenitis, and gastroesophageal reflux. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from November 1987 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In December 2014, the Veteran testified at a videoconference Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Based on the testimony at the videoconference hearing, at the suggestion of the VLJ additional records were submitted by the Veteran. The Veteran's representative clearly entered a waiver of agency of original jurisdiction review at the time of the hearing, and the Board may consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2014). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's gastritis, duodenitis, and gastroesophageal reflux has been productive of severe impairment of health. CONCLUSION OF LAW The criteria for a 60 percent rating, and no higher, for Veteran's gastritis, duodenitis, and gastroesophageal reflux have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.21, 4.27, 4.114, Diagnostic Code 7346 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from a disagreement with an initial rating decision in March 2010, which granted service-connection for gastritis, duodenitis, and gastroesophageal reflux at 10 percent disabling. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and 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). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, records from his employer, and from private medical facilities have also been associated with the record. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. An esophageal conditions Disability Benefits Questionnaire (DBQ) was conducted in November 2013. 38 C.F.R. § 3.159(4). At the esophageal conditions DBQ the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave a diagnosis. Since the examinations included sufficient detail as to the current severity of the Veteran's esophageal disabilities, the Board concludes that the examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran was also provided an opportunity to set forth his contentions during a videoconference Board hearing in December 2014, which fulfilled the requirements set forth by Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria The Veteran has been assigned a 10 percent disability rating for his gastritis, duodenitis, and gastroesophageal reflux, effective from August 2009. The Veteran seeks an increased initial rating. Disability evaluations 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 his 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. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. Ratings under Diagnostic Codes 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. A single disability rating 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 Veteran's disability has been evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. §§ 4.20, 4.27. This hyphenated diagnostic code including the "99" series indicates the most analogous diagnostic code for the Veteran's disability picture. The RO has rated the service-connected gastritis, duodenitis, and gastroesophageal reflux by analogy to 38 C.F.R. § 4.114, Diagnostic Code 7346, which sets forth the criteria for rating hiatal hernias. A 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent disability rating of less severity. A 30 percent disability rating is assigned for 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. A 60 percent disability rating, the highest schedular rating available, is assigned 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis In January 2010 the Veteran underwent a VA stomach, duodenum, and peritoneal adhesions examination. The examiner noted the Veteran's initial onset of severe sharp abdominal pain, with nausea, and vomiting during basic training. The Veteran stated that since 2001 he had suffered recurrent abdominal pain which required multiple emergency room visits, and hospital admissions. The Veteran relayed that he was diagnosed with gastritis and diverticulitis. The examiner noted that the Veteran required a restricted diet, used a proton pump inhibitor, and took Protonix or Prevacid as needed. The Veteran reported that he experiences periods of incapacitation due to his stomach or duodenal disease about two or three times a year which last seven days in duration. The Veteran stated that he had episodes of abdominal colic, nausea/vomiting and abdominal distention. The Veteran reported gnawing or burning pain weekly in his epigastric region, which lasts a few minutes prior to eating. The Veteran stated that it is relieved with antacids. The Veteran reported occasional episodes of hematemesis and melena. The Veteran stated that he experiences nausea and vomiting, though less than once a week. The Veteran stated that he has diarrhea attacks one to three times a week which last for two days. The examiner noted that the Veteran complained of recurrent lower abdominal pain secondary to episodes of acute diverticulitis. The Veteran stated that he was employed fulltime, and that in the past year he was unable to work twenty weeks due to his disabilities. The Veteran specifically estimated that three to four weeks was because of his gastritis, while the remaining sixteen weeks was due to abdominal pain. The examiner noted that the Veteran's symptoms results in increased absenteeism from work. The Veteran submitted with his Notice of Disagreement (NOD) in July 2010, records of recent hospitalizations. Records from Manati Medical Center show that the Veteran was admitted on January 19, 2010 and discharged January 28, 2010. The Veteran was diagnosed with abdominal pain, clinical colitis, duodenitis, and hiatal hernia. Additional records from Manati Medical Center show that the Veteran was admitted on October 7, 2009 until October 11, 2009 due to rectal bleeding. The records submitted by the Veteran also show that he visited Manati Medical Center for emergency services in April and May of 2010. The Veteran submitted lay statements regarding his gastritis, duodenitis, and gastroesophageal reflux in his VA Form 9, received in January 2011. The Veteran stated that he had been in and out of hospitals because of his gastritis, duodenitis, and gastroesophageal reflux, and that he also experienced acute pain and vomiting. The Veteran stated that he had to take sick leave for his disability. The Veteran alleged multiple psychological symptoms which was processed as a separate claim for benefits. In November 2013 the Veteran underwent an esophageal conditions DBQ. The Veteran reported that he was unable to eat certain kinds of food, such as spicy, or caffeine content beverages. The Veteran stated that his gastroesophageal symptoms are controlled with over the counter medications. The Veteran reported the following symptoms: persistent and recurrent epigastric distress, heartburn, reflux, regurgitation, transient nausea, and transient vomiting. The Veteran reported continuous abdominal pain which were only partially relieved by standard ulcer therapy, transient nausea and vomiting with four or more episodes a year lasting less than one day. The Veteran testified to the current severity and the functional impact of his disability at a December 2014 videoconference Board hearing. The Veteran stated that he suffers from pain on a daily basis, and that he had bad acid reflux which impacts his ability to sleep. The Veteran stated that he has problems with absences from his job, and that he had a twenty-five day period of hospitalization in 2008. The Veteran stated that he is able to maintain his job and employment. The Veteran complained of severe abdominal pain, and that his diet is affected every day because of his disability. The Veteran stated that he had to take considerable amount of sick leave from his employment, and even had a one month period of leave without pay. The Veteran stated that he had visited the hospital six or seven times recently. The Veteran denied symptoms of anemia. At the Veteran's hearing, employment records, and medical records were requested to be added to the record. The records submitted by the Veteran after the videoconference hearing show that the Veteran was approved for leave without pay due to infirmity for the following periods: (1) May 1, 2007 through May 8, 2007, (2) September 1, 2007 through October 7, 2007, (3) November 6, 2008 through December 1, 2008, (4) August 4, 2008 through August 10, 2008. A letter dated from December 2008, from the Veteran's employer, stated because of the Veteran's absence from November 6, 2008 until December 1, 2008 that he used all of his accumulated leave balances. A notation from Doctor's Center Hospital shows that the Veteran was treated and hospitalized from May 11, 2005, to May 18, 2005. A similar notation exists for November 13, 2008 to December 2, 2008. The physician noted that the Veteran was unable to work from November 5, 2008 until November 11, 2008. The Veteran submitted a Social Security Administration application for benefits in August 2008. The Veteran listed poly arthritis, bursitis, arthritic gout, and diverticulosis as his disabilities which cause him pain. The Veteran stated that he has been hospitalized due to pain for two occasions. The application also included that the reason for the Veteran's May 2008, to June 2008 hospitalization was for his intestinal bleeding, and strong pain in joints. A note from July 2008, from the Rheumatological Center of Puerto Rico stated that the Veteran had gouts and diverticulitis, and that he was unable to work until August 2008. Several other endorsement from physicians about the Veteran's inability to work for short periods of time are associated with the record. Based on the evidence of record, the Board finds that a 60 percent rating is more appropriate for the Veteran's gastritis, duodenitis, and gastroesophageal reflux symptomology. See 38 C.F.R. § 4.7. The Board finds that the Veteran's combined esophageal symptoms produces a severe impairment on the Veteran's health. The Veteran throughout the appeal period complained of constant abdominal pain, transient nausea and vomiting, and severe heartburn. Evidence of record also shows occasional episodes of hematemesis and melena. The Veteran has had numerous periods of hospitalization, and emergency room visits due to his pain and gastritis, duodenitis, and gastroesophageal reflux. Not only has the Veteran's condition required consistent medical attention, but the Veteran's symptoms can flare-up causing incapacitation, and the inability to work. Physicians have on numerous occasions found that the Veteran's condition prevented him from working due to the severity. Furthermore, the Veteran has several documented occurrences of taking leave without pay due to infirmity from his gastritis, duodenitis, and gastroesophageal reflux symptoms. The combined impact of the Veteran's gastritis, duodenitis, and gastroesophageal reflux causes the Veteran to seek consistent medical care, and also causes excessive work absences, which together is deemed as a severe impairment of health to the Veteran. Thus, the Veteran's severity of his gastritis, duodenitis, and gastroesophageal reflux symptoms warrant a 60 percent disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7346. The Board has considered all potentially applicable diagnostic codes and finds no basis upon which to assign a higher evaluation and finds that no other diagnostic codes which allow for the assignment of a higher rating are applicable. See 38 C.F.R. §§ 4.114, DCs 7202 (loss of tongue), 7306 (duodenal ulcer), 7312 (cirrhosis), 7323 (ulcerative colitis), 7330 (intestine, fistula), 7331 (peritonitis, tuberculosis), 7333 (stricture of the rectum), 7339 (ventral hernia), 7345 (chronic liver disease), 7347 (pancreatitis), 7345 (hepatitis). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The schedular evaluation for the Veteran's gastritis, duodenitis, and gastroesophageal reflux is not inadequate. The Veteran complains of continuous abdominal pain, nausea, vomiting, and heart burn. These and other esophageal symptoms are contemplated by the broad rating criteria under Diagnostic Code 7346. The Veteran does not have any symptoms from his service-connected disorder that are unusual or exceptional from those contemplated by the schedular criteria. The Veteran's need for consistent medical care, hospitalizations, and absence from work is also specifically contemplated by the rating criteria. The frequency, severity, and type of esophageal symptoms are specifically viewed in light of the impairment of health to the Veteran under Diagnostic Code 7346. The Board contemplated the Veteran's need for medical attention, and work absences in determining the overall the Veteran's symptoms due to his gastritis, duodenitis, and gastroesophageal reflux cause severe impairment to his health; thus the schedular evaluations are adequate to rate the Veteran's overall impairment due to his gastritis, duodenitis, and gastroesophageal reflux symptoms. In view of this, referral of this case for extraschedular consideration is not in order. See VAOPGCPREC 6-96. The Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki. In that case, the Court held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not submitted a claim for TDIU and in fact the evidence shows that he remains employed at the Department of Housing despite the severity of the disability at issue. Therefore, the Board finds that TDIU based on the Veteran's service-connected gastritis, duodenitis, and gastroesophageal reflux is not warranted. ORDER Entitlement to an initial rating of 60 percent, but not higher, for gastritis, duodenitis, and gastroesophageal reflux is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs