Citation Nr: 1606127 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 12-23 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a disability rating in excess of 60 percent for gastroesophageal reflux disease, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea. REPRESENTATION Appellant represented by: Tina Bullock, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum schedular rating for gastroesophageal reflux disease, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea. 2. The Veteran's service-connected gastrointestinal disorder is not manifested by: marginal ulcer; cirrhosis of the liver; ulcerative colitis; fistula of the intestine; complete loss of sphincter control; stricture of the rectum and anus requiring colostomy; ventral hernia; liver disease; pancreatitis; or hepatitis. CONCLUSION OF LAW The criteria for a disability rating in excess of 60 percent for gastroesophageal reflux disease, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.113, 4.114, Diagnostic Codes7346-7308 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The Veteran has been provided the requisite notice with respect to his claim for an increased rating in a letter dated February 2011 which was prior to the rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist the Veteran. VA has obtained service treatment records, VA medical records, VA examination reports, assisted the Veteran in obtaining evidence, and afforded him the opportunity to present testimony, written statements, and evidence. The Veteran has been accorded multiple VA examinations during the appeal period with the most recent being in December 2014. These examinations are adequate as they addressed the rating criteria contemplated in rating the disability at issue. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 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 C.F.R. Part 4 (2015). The Veteran's service-connected gastrointestinal disorder is gastroesophageal reflux disease (GERD), status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea which has been rated at a 60 percent disability rating, effective in December 2000. A total disability rating based on individual unemployability (TDIU) has been granted, effective in December 2000. In December 2014, the most recent VA examination of the Veteran was conducted. The examiner noted that the Veteran was service-connected for GERD and was status-post laparoscopic Nissen fundoplication surgery in 2000, which was complicated by a ventral hernia that was repaired with mesh in 2003. The examiner noted that the Veteran continued to experience pyrosis, with associated bloating and eructation. The Veteran had heartburn, which was treated with the twice daily use of a proton pump inhibitor. His gaseous bloating was treated with simethicone, on an as needed basis. The Veteran reported avoiding fatty and fried foods, which tended to exacerbate his epigastric complaints. He denied dysphagia; he had experienced a weight gain since 2000, and there was no significant weight loss due to nutritional deficiency over the last 24 months. He had not experienced dumping syndrome, but he reported constipation associated with his anti-cholinergic mental health drugs. He was prescribed a nightly stool softener and used it as needed. The Veteran's present symptoms were persistent recurrent epigastric distress, pyrosis, and episodes of nausea four or more times a year, which averaged one to nine days duration. The conclusion was persistent epigastric distress, without anemia or detrimental nutritional impact that would preclude gainful employment. The findings of the December 2014 VA examination are consistent with the findings of VA examinations conducted earlier during the appeal period in April 2011 and November 2011, as well as the symptoms noted on the VA treatment records obtained. The Veteran continues to assert that he warrants an increased disability rating for his service-connected gastrointestinal disorder. He has made various assertions of increased symptoms. In the past he has asserted that he warrants separate disability ratings which are simply not permitted under the controlling regulations. 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, under the Rating Schedule, 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. 38 C.F.R. §§4.14, 4.113 (2015). The Rating Schedule provides that 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 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 Veteran's service-connected GERD, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea is rated at a 60 percent disability rating under Diagnostic Codes7346-7308 for postgastrectomy syndromes. In the selection of code numbers assigned to disabilities, injuries and diseases will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2015). The hyphenated diagnostic code in this case indicates that a hiatal under Diagnostic Code 7346, is the service-connected disorder, and postgastrectomy, under Diagnostic Code 7308, is the residual condition. A 60 percent disability rating for hiatal hernia contemplates symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The 60 percent disability rating is the maximum assignable schedular disability rating under this diagnostic code. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 60 percent rating contemplates severe postgastrectomy syndrome with associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. The 60 percent rating is the maximum assignable schedular disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7308. A 60 percent disability rating is generally the maximum assignable schedular disability rating for gastrointestinal disorders, and is the maximum assignable schedular disability rating under the specific diagnostic codes under which the Veteran's service-connected gastrointestinal disorder is rated. See 38 C.F.R. § 4.114, Diagnostic Codes 7346-7308. The Board has considered the applicability of rating the Veteran's service-connected disability under other potentially applicable diagnostic codes which provide for a rating in excess of 60 percent. However, a marginal ulcer, cirrhosis of the liver, ulcerative colitis, fistula of the intestine, complete loss of sphincter control, stricture of the rectum and anus requiring colostomy, ventral hernia, chronic liver disease without cirrhosis, pancreatitis, or hepatitis C have not been shown by the evidence of record. See 38 C.F.R. § 4.114, Diagnostic Codes 7306, 7312, 7323, 7330, 7332, 7333, 7339, 7345, 7347, 7354 (2015). As established in the decision above, the Veteran is receiving the maximum schedular rating under Diagnostic Codes 7346-7308 for his service-connected GERD, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea. His continued assertion of an increase in disability is an assertion that his service connected gastrointestinal disorder warrants an increased rating on an extra-schedular basis. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2015). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's service-connected gastrointestinal disorder rated above are contemplated by the schedular criteria which are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. When comparing the disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the assigned disability ratings. While part of the service-connected disability is vagus nerve injury (post vagotomy syndrome), the resulting symptoms are not neurologic in nature but result in delayed gastric emptying, which is a gastrointestinal symptom that is contemplated under the disability rating assigned. See 38 C.F.R. § 4.114. The criteria for the disability rating assigned reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. The Veteran is receiving the maximum schedular rating for his service-connected gastrointestinal disorder. His service-connected gastrointestinal disorder is rated under the appropriate diagnostic codes. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b). ORDER A disability rating in excess of 60 percent for gastroesophageal reflux disease, status post nissen fundoplication, vagus nerve injury with delayed gastric emptying with resultant bloating, nausea and intermittent diarrhea is denied. ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs