Citation Nr: 0921609 Decision Date: 06/09/09 Archive Date: 06/16/09 DOCKET NO. 08-05 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating greater than 30 percent for gastritis with hiatal hernia and gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The Veteran had active military service from January 1970 to April 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2009, the Veteran and his spouse presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims folder. The VA secured additional VA medical evidence on the day of the Veteran's Travel Board hearing. This evidence has not yet been considered by the RO, the agency of original jurisdiction. However, because the Veteran submitted a waiver of RO consideration for this evidence, the Board accepts it for inclusion in the record and consideration by the Board at this time. See 38 C.F.R. §§ 20.800, 20.1304 (2008). FINDING OF FACT The Veteran's gastritis with hiatal hernia and GERD is manifested by daily abdominal distress and pain, vomiting, nausea, anemia, weight loss, bloating, and regurgitation. It causes a "severe" impairment in the Veteran's health. CONCLUSION OF LAW The criteria are met for a higher 60 percent disability rating, but no greater, for the Veteran's gastritis with hiatal hernia and GERD disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.27, 4.113, 4.114, Diagnostic Codes 7307, 7346 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case, the Board is essentially granting the full benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. See 38 C.F.R. § 20.1102. In particular, the Board considers the assignment of a 60 percent rating to be a full grant of benefits sought on this issue. A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). In the present case, a 60 percent rating is the maximum rating available under the relevant diagnostic codes for the Veteran's disability. No other diagnostic codes relating to digestive disorders that provide for a higher rating are applicable here. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2008). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The issue on appeal arises from a claim for an increased rating received in April 2007. As a result, only the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, a recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). That is to say, the Board must consider whether there have been times when the Veteran's disability has been more severe than at others. And if there have, the Board may "stage" the rating. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis The Veteran's gastritis with hiatal hernia and GERD is currently evaluated as 30 percent disabling under Diagnostic Codes 7307-7346, hypertrophic gastritis and hiatal hernia. 38 C.F.R. § 4.114. 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. 38 C.F.R. § 4.27. 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. Id. In the present case, the Veteran was originally service-connected for gastritis under Diagnostic Code 7307, but subsequently hiatal hernia and GERD under Diagnostic Code 7346 were associated with the service- connected disorder as residual conditions. See January 2008 VA stomach examination. In the present case, the Board emphasizes only a single evaluation can be assigned for his gastritis with hiatal hernia and GERD, although several diagnostic codes can at least be considered to see which offers him the highest rating. This is because VA regulations acknowledge that diseases of the digestive tract, even though differing in site of pathology, may produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and nutrition. 38 C.F.R. § 4.113. Therefore, certain coexisting digestive diseases do not lend themselves to distinct and separate disability evaluations without violating the principle of pyramiding under 38 C.F.R. § 4.14. Specifically, for certain diseases of the digestive system, VA regulations indicate that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation is assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability so warrants. 38 C.F.R. § 4.114. Under Diagnostic Code 7307 for gastritis, a 10 percent evaluation is warranted for chronic hypertrophic gastritis with small nodular lesions and symptoms. A 30 percent evaluation is warranted in cases of multiple small eroded or ulcerated areas and symptoms. A 60 percent evaluation is warranted in cases of severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114 (2008). Under Diagnostic Code 7346 for hiatal hernia, a 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent disability evaluation is contemplated 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. Id. Upon review of the evidence, a higher 60 percent disability rating is warranted under Diagnostic Code 7346. 38 C.F.R. § 4.7. This is the maximum rating available under this Diagnostic Code. The Veteran consistently reports symptoms of daily abdominal distress and pain, vomiting, nausea, anemia, weight loss, bloating, and regurgitation. See September 2007 Notice of Disagreement (NOD); January 2008 substantive appeal. He says he has lost 61 pounds in the last three years. See Travel Board hearing testimony at page 4. Furthermore, the Veteran underwent a series of VA stomach, esophagus, hemic, and general medical examinations in January 2008. These examinations documented nausea, vomiting, "severe" pyrosis, anemia, heartburn, and food restrictions. He also takes several medications to treat his stomach disorders. Most importantly, the examiner diagnosed him with "moderate to severe" GERD with esophagitis and gastritis. The examiner considered an April 2007 VA barium swallow test that revealed "marked" GERD. Although the evidence does not demonstrate all of the criteria for the higher 60 percent rating under Diagnostic Code 7346, the Board finds that the overall disability picture more closely approximates the criteria for a 60 percent rating. 38 C.F.R. § 4.7. VA and private treatment records dated from 2007 to the present also support this conclusion, as they note "chronic epigastric discomfort" with vomiting, nausea, and bloating. The Board acknowledges the Veteran has also undergone treatment for nonservice-connected multiple myeloma cancer of the bone marrow since 2000. He had a bone marrow transplant in July 2007, and he has undergone intensive radiation and chemotherapy for his cancer. His cancer has therefore severely impacted his overall health, including his digestive system. But when it is not possible to separate the effects of the service-connected condition versus a nonservice- connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Consequently, in assigning the maximum 60 percent rating, the Board will attribute his signs and symptoms to his service-connected stomach disability. There are other potential Diagnostic Codes for the digestive system which provide for a rating higher than 60 percent. However, there is no contention or evidence of a marginal ulcer (Diagnostic Code 7306); cirrhosis of the liver (Diagnostic Code 7312); ulcerative colitis (Diagnostic Code 7323); fistula of the intestine (Diagnostic Code 7330); impairment of sphincter control (Diagnostic Code 7332); stricture of the rectum and anus (Diagnostic Code 7333); postoperative ventral hernia (Diagnostic Code 7339); malignant neoplasms of the digestive system (Diagnostic Code 7343); chronic liver disease (Diagnostic Code 7345); or pancreatitis, liver transplant, or hepatitis C (Diagnostic Codes 7347, 7351, 7354). 38 C.F.R. § 4.114. Therefore, these Diagnostic Codes will not be applied. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). As such, the Board will continue to evaluate his disability under Diagnostic Code 7346 for hiatal hernia, since it provides the highest rating available. In summary, the Board finds that the evidence supports a higher 60 percent disability rating, but no greater, for gastritis with hiatal hernia and GERD under Diagnostic Code 7346. 38 C.F.R. § 4.3. This level of disability has remained constant throughout the entire appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-Schedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extra- schedular consideration. 38 C.F.R. § 3.321(b)(1). Since the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. In any event, the Board finds no evidence that the Veteran's gastritis with hiatal hernia and GERD disability markedly interferes with his ability to work, meaning above and beyond that contemplated by his separate schedular ratings. 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; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It is the Board's determination that the Veteran's severe nonservice-connected bone marrow cancer most clearly impacted his ability to work, as documented by the January 2008 VA general medical examiner. Finally, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations due solely to his service-connected gastritis with hiatal hernia and GERD disability, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. VAOPGCPREC 6-96. The medical evidence of record reveals that his recent hospitalizations and chemotherapy are due to his cancer, rather than his service-connected gastritis with hiatal hernia and GERD. ORDER A higher disability rating of 60 percent for gastritis with hiatal hernia and GERD is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs