Citation Nr: A21019528 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 200731-101019 DATE: December 7, 2021 ORDER The reduction from 10 percent to non-compensable rating for gastritis with reflux esophagitis was improper; restoration of a 10 percent rating is granted effective September 7, 2019, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an evaluation in excess of 10 percent for gastritis with reflux esophagitis for the period from December 23, 2019 to February 10, 2020 is denied. FINDINGS OF FACT 1. At the time of the reduction, the Veteran's service-connected gastritis with reflux esophagitis had been rated as 10 percent disabling for a period of more than five years. 2. Any improvement found or observed in the Veteran's gastritis with reflux esophagitis was not shown to have been maintained under the ordinary conditions of life. 3. The Veteran's gastritis did not result in chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and accompanying symptoms at any time during the appeal period, and the evidence of record preponderates against finding that symptoms of pyrosis, regurgitation, abdominal pain, nausea, and dysphagia were accompanied with substernal, arm, or shoulder pain, productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The reduction of the rating for gastritis with reflux esophagitis from 10 percent to a non-compensable rating, effective September 7, 2019, was improper; restoration is warranted. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 7307-7346. 2. For the period from December 23, 2019 to February 10, 2020, the criteria for an evaluation in excess of 10 percent for gastritis with reflux esophagitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Codes 7307-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 to August 2012. The rating decision on appeal was issued in February 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In March 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a February 2020 decision. In July 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior February 2020 decision. In the July 2020 VA Form 10182 (faxed again in October 2020), Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision in February 2020 on appeal. 38 C.F.R. § 20.301. In the March 2020 VA Form 20-0996, the Veteran seems to indicate that he is appealing an issue of entitlement to an earlier effective date for gastritis and he contends that he is entitled to a "30 percent rating." The February 2020 rating decision implemented the rate reduction proposal for gastritis made in the August 2018 rating decision, as noted in that rating decision and also explained below, and additionally decided that a higher evaluation of 30 percent is not warranted for gastritis. Accordingly, the Board construes the Veteran's claim for an "earlier effective date" as whether an earliest effective date could be assigned for a 30 percent rating for gastritis, if such a higher rating is warranted. PROPRIETY OF RATE REDUCTION 1. Whether the reduction of the rating for gastritis with reflux esophagitis from 10 percent to a non-compensable rating, effective September 7, 2019 was proper The AOJ proposed to reduce the rating for gastritis from 10 percent to non-compensable rating in an August 2018 rating decision. In September 2018, the Veteran submitted a statement contending the proposal for rate reduction because no examination was conducted. He further indicated that he would be out of country until March 2019. A March 2019 VA Form 21-820 indicates that the Veteran informed VA that he was back in the U.S. and requested to resume his appeal on the August 2018 rating decision. In August 2019, the AOJ requested to schedule an examination, and the examination was conducted in September 2019. Subsequently, the AOJ implemented the rate reduction and also denied a rating of 30 percent for gastritis in the February 2020 rating decision, which is on appeal. The Veteran contends that since the 10 percent rating was in effect for five years or more, VA cannot rely only on an examination less full and complete than those on which payments were authorized and that VA cannot reduce the rating without providing him with endoscopy. See May 2020 Veteran's statement. The regulatory provisions pertaining to rating reductions contain notification and due process requirements that fall outside the ambit of the Veterans Claims Assistance Act (VCAA). See 38 C.F.R. § 3.105 (e). Accordingly, where a reduction in a rating would not result in a decrease in the overall amount of compensation payable, there are no procedural requirements. In this case, the due process provisions outlined in 38 C.F.R. § 3.105 does not apply because the reduction did not result in a decrease in the Veteran's combined evaluation for compensation of 90 percent. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29-97 (Aug. 1997). Generally, 38 C.F.R. § 3.105 (e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence and, if applicable, certain procedural guidelines have been followed. 38 C.F.R. §§ 3.105 (e), (i)(2)(i). There are procedural protections that apply to stabilized disability ratings that "have continued for long periods at the same level (5 years or more)." 38 C.F.R. § 3.344 (c). The use of parentheses in 38 C.F.R. § 3.344 (c) suggests that the five- year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). At the time of the February 2020 rating decision which reduced the rating, the Veteran's 10 percent evaluation had been in effect for more than five years (since the November 2012 rating decision). Several regulations apply to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. VA rating reductions, as with all VA rating decisions, must be based upon review of the entire history of a veteran's disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction is not proper unless a veteran's disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in the condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must be determined that any such improvement also reflects an improvement in a veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 3.344 (c), 4.2, 4.10. In a rating reduction case, VA has the burden to establish that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Board must focus on the evidence available to the RO at the time the reduction was made, although post-reduction medical evidence may be considered in the context of evaluating whether the disability actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, when looking at the evidence for which the RO considered when assigning a 10 percent disability rating, and when looking at the evidence for which the RO considered at the time the reduction was made, the Board finds that the rating reduction was not proper because the evidence of record fails to show actual improvement in the ability to function under the ordinary conditions of life and work. The Veteran's gastritis with reflux esophagitis has been evaluated under Diagnostic Code 7307-7346. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability. In this case, Diagnostic Code 7307 pertains gastritis, hypertrophic as the diagnosed disability and Diagnostic Code 7346 pertains to hiatal hernia used to rate symptoms of the diagnosed disability. 38 C.F.R. § 4.114, Diagnostic Code 7307-7346 Under Diagnostic Code 7307, a 10 percent evaluation is assigned for chronic hypertrophic gastritis with small nodular lesions, and symptoms. A 30 percent evaluation is assigned for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent evaluation is assigned for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas. It also evaluates atrophic gastritis with a complication of a number of diseases, including pernicious anemia and directs the rater to rate the underlying condition. 38 C.F.R. § 4.114, Diagnostic Code 7307. Under Diagnostic Code 7346, a 10 percent rating is warranted when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain and productive of considerable impairment of health. A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Dysphagia is defined as difficulty in swallowing. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142. Turning to the evidence, a July 2012 VA examination (whose report was completed in August 2012) reflects a diagnosis of mild gastritis and severe reflux esophagitis. For current symptoms, the Veteran reported having heartburns. The examiner noted that he had 4 or more recurring episodes of symptoms that were not severe, lasting 1 to 9 days, and 4 or more recurring episodes of severe symptoms, lasting 10 days or more. Additionally, the examiner noted that the Veteran had symptoms of anemia, recurrent nausea that occurred 4 or more episodes lasting 1 to 9 days per year, mild vomiting that occurred one episode lasting less than a day per year, transient melena that occurred 3 episodes lasting 1 to 9 days per year. He did not have any incapacitating episodes due to gastritis. He did not have hypertrophic gastritis or atrophic gastritis. No scars related to gastritis were found. The examiner noted an August 2012 upper endoscopy that showed mild gastritis with severe reflux esophagitis. The examiner determined that the gastritis did not impact the Veteran's ability to work. The August 2012 endoscopy result is of record. It shows that the Veteran had mildly severe esophagitis with no bleeding in the lower third of the esophagus and scattered mild inflammation characterized by congestion (edema) and erythema in the prepyloric region of the stomach. The impression was mildly severe reflux esophagitis and chronic gastritis. A November 2012 VA treatment record indicates that the Veteran was put on trial for omeprazole for his gastritis. In a November 2012 rating decision, the AOJ granted service connection for gastritis with reflux esophagitis and assigned an evaluation of 10 percent based on a finding that the Veteran's symptoms of pyrosis, reflux, and regurgitation under Diagnostic Code 7346. The AOJ also found that the Veteran's gastritis warranted a noncompensable evaluation based on a diagnosed disability with no compensable symptoms under Diagnostic Code 7307. Since ratings under diagnostic code 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other under 38 C.F.R. § 4.114, the AOJ assigned an evaluation of 10 percent for the Veteran's gastritis under Diagnostic Code 7346. In July 2017, the Veteran submitted a claim for an increased evaluation for his gastritis. Subsequently, a VA examination was scheduled in the same month. However, the examiner noted that the Veteran refused to undergo an upper gastrointestinal examination and stated he no longer had an upper gastrointestinal issue. An October 2017 rating decision continued the 10 percent evaluation for gastritis. In July 2018, the AOJ requested to schedule a routine examination for gastritis. The records reflect that VA attempted to contact the Veteran to schedule an appointment for the examination to no avail, though he had a clinical visit at VA within 14 days since the attempt. In August 2018 rating decision, the AOJ proposed the rate reduction for gastritis, in part, based on the failure to attend a VA examination scheduled for in July 2018 as well as refusal to undergo an examination in July 2017. The Veteran was notified of the propose for rate reduction in August 2018. Subsequently, the Veteran submitted a statement in September 2018, contesting the rate reduction because no examination. He indicated that he had been out of country since the end of July 2018 until March 2019. In March 2019, the Veteran notified VA that he was back in the United States and asked to resume his appeal on the August 2018 rating decision. The Veteran underwent a VA examination in September 2019. A diagnosis was gastritis with reflux esophagitis. The Veteran reported having heartburn daily and nausea at times when heartburn was severe. He used omeprazole and Rolaids. The examiner determined that the Veteran had symptoms of pyrosis and 4 or more episodes of nausea lasting 10 days or more per year. No scars were noted. The Veteran reported that he was not able to focus at work when heartburn was severe and needed to take a break. He reported having decreased efficiency when he was not able to focus. He reported losing up to 1 week time lost in the last 12 months due to his gastritis. A January 2020 VA treatment record reflects the Veteran's complaint of intermittent mild abdominal pain and nausea. In February 2020, the Veteran stated that he reported to the September 2019 examiner that he had difficulty swallowing daily due to gastritis. In February 2020, the AOJ reduced the rating for gastritis from 10 percent to noncompensable rating because the September 2019 VA examination notes only pyrosis and treatment by medication and failed to show two or more of the symptoms listed in the diagnostic code to warrant a 10 percent rating. Additionally, the AOJ denied a higher evaluation of 30 percent because the evidence did not show multiple small eroded or ulcerated areas with associated symptoms. In light of the pertinent evidence, the record does not indicate an actual improvement of symptoms effective September 7, 2019. The evidence indicates that the medical treatment of his gastritis began after the initial July 2012 VA examination. Although the medication seems to have been helpful, the Veteran still reported having heartburn, nausea, and dysphagia due to his gastritis. Additionally, the Veteran reported his gastritis impacts his ability to focus, which was not noted in the July 2012 examination. The rating reduction was not warranted. Accordingly, the 10 percent rating for the Veteran's gastritis will be restored effective September 7, 2019, the date of the reduction. INCREASED RATING 1. Evaluation in excess of 10 percent for gastritis for the period from December 23, 2019 to February 10, 2020 The Veteran's claim for increased evaluation for gastritis was received on December 23, 2019. His gastritis is currently rated as 10 percent disabling during the appeal period under Diagnostic Code 7307-7346. The rating criteria have been provided in the above section. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or staged ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Here, the evidence of record for the period from December 2018 to February 2020 does not reflect that the Veteran's gastritis resulted in chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and accompanying symptoms at any time during the appeal period. Moreover, the evidence of record preponderates against finding that symptoms of pyrosis, regurgitation, and dysphagia were accompanied with substernal, arm, or shoulder pain and, in addition, that these symptoms resulted in at most difficulty with focusing, the severity less than considerable impairment of health. The symptomatology documented in the evidence of record is not more nearly approximated by the rating criteria for a 30 percent under either Diagnostic Code 7307 or 7346. Therefore, the claim for an evaluation in excess of 10 percent for gastritis for the period from December 23, 2019 to February 10, 2020 is denied. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.