Citation Nr: 0002258 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-19 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Determination of a proper initial rating for a gastrointestinal disorder, currently assigned a zero-percent evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to March 1978. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 1997, the Board initially remanded the case to the RO for additional development, and by a January 1998 decision, granted service connection for a gastrointestinal disorder. In February 1998, the RO effectuated the Board's January 1998 decision, and assigned a noncompensable evaluation for the veteran's gastrointestinal disorder, effective from October 6, 1994. The veteran now contends that the severity of his service- connected gastrointestinal disorder warrants assignment of an initial compensable evaluation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained by the RO. 2. The veteran's service-connected gastrointestinal disorder is manifested by persistently recurrent epigastric distress with pyrosis (heartburn), and regurgitation, but it is not productive of substernal or arm or shoulder pain, nor is it manifested by considerable impairment of health, ulceration, or gastric lesions. CONCLUSION OF LAW The criteria for assignment of an initial 10 percent evaluation for the veteran's gastrointestinal disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.20, 4.114, Diagnostic Codes 7307, 7346 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The preliminary question before the Board is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). Accordingly, the Board finds that the veteran has presented a well-grounded claim. Once a claimant has presented a well-grounded claim, the VA has a duty to assist him in developing facts which are pertinent to that claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and transcripts of personal hearing testimony given before a Hearing Officer and before the undersigned Board Member at the RO. The Board is not aware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See 38 U.S.C.A. § 5107(a); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability 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). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Moreover, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). In addition, 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 (1999). The record shows that the veteran complained of stomach problems which were incurred secondary to pain medication prescribed for his service-connected back disorder. The report of a VA rating examination dated in October 1994 shows that the veteran reported taking 800 milligrams (mg) of Motrin, and complained that the medication resulted in stomach soreness and nausea. The veteran indicated that he told his treating physicians of the problems he experienced due to the Motrin, and his medication was subsequently changed to Relafen. On examination, the veteran complained of tenderness over the mid, right, and left lower abdomen. No irregularities were noted with respect to the liver, spleen, or kidneys. No masses were palpable, and there was no muscle guarding or rigidity. Bowel sounds were active, and no bruits or melena were noted. The veteran was not found to be anemic, but reported vomiting almost every morning. The examiner concluded with a diagnosis of a history of stomach pain, possibly gastritis; of a multifactorial etiology including the use of Motrin and alcohol and inadequate dietary habits. VA outpatient treatment records dated in June and August 1995 show that the veteran complained of experiencing indigestion requiring excessive antacid use, which he indicated was progressively worsening. In June 1995, the veteran denied experiencing any melena or vomiting, and was noted to be taking Tagamet. The following August, he reported experiencing intermittent melena, the last occurrence of which was three weeks previously. An abdominal ultrasound showed normal results. The liver, spleen, gallbladder, common bile duct, kidneys, and pancreas were all normal. In addition no biliary duct obstructions or dilation were found. In August 1995, the veteran and his wife appeared at a personal hearing before a Hearing Officer at the RO. The veteran testified that he suffered from a gastrointestinal disorder resulting from the pain medications prescribed for his service-connected back disorder. He testified that upon seeing a neurosurgeon in Jackson, Mississippi in 1994, he used the restroom and observed that he was passing blood. The veteran indicated that he immediately went to an emergency room and was informed that his medication was causing the problem. The veteran stated that upon being shown his prescribed medication, the attending physician threw that medication in the trash and gave him another prescription for other medication similar to Tagamet to clear up the stomach problem. The veteran expressed his belief that the prescribed medication was causing an ulcer because of a burning sensation. According to the veteran, his symptoms included a burning sensation in the stomach, passing blood, and hyperacidity. In addition, he testified that he experienced difficulty in keeping solid food down, and that he experienced nausea before he was able to complete a full meal. The veteran also conceded that he had never undergone an upper GI series examination, and that he had not actually been diagnosed with an ulcer. In May 1997, the veteran underwent an additional VA rating examination in which he complained of experiencing epigastric and substernal burning pain, particularly when lying down. The pain was relieved by Zantac but not by antacids. In addition, the veteran reported waking at night with what he characterized as "sour material" in his throat. He reported a past history of experiencing difficulty swallowing food, which had improved after an EGD examination some two or three years previously. He also indicated that his stomach complaints were aggravated by spicy food. On examination, the veteran was found to have what was characterized as a mild, very localized epigastric tenderness which the veteran indicated occurred on a daily basis. No abdominal viscera or masses were felt. The veteran was not found to be clinically anemic, and no periodic vomiting, recurrent hematemesis or melena were found. The examiner concluded with a diagnosis of gastroesophageal reflux disorder. He also commented that the veteran's anti-inflammatory and muscle relaxant medication required for his back clearly aggravated the reflux problem. An upper GI series was also conducted, which revealed images of the esophagus, stomach, and proximal bowel. The veteran demonstrated a normal swallowing mechanism without evidence of aspiration or penetration. The esophagus was normal in size, position and contour, without evidence of obstructing or constricting lesions. The veteran was found to have a moderate-sized sliding hiatal hernia. There was no evidence of gastroesophageal reflux or of distal esophagitis type changes. The esophagus was generally found to be unremarkable without evidence of ulceration or mass lesion. The esophagus was found to empty into a well- distended duodenal bulb without any evidence of ulceration. The hiatal hernia was the only abnormality found. In June 1999, the veteran appeared at a personal hearing before the undersigned Board Member at the RO and testified that he experienced problems involving breaking out in sweats, hypergastritis, and vomiting upon eating food. The veteran indicated that he experienced a thick phlegm-like substance in his throat regardless of what he ate, and that he experienced regular morning nausea. He stated that the material he vomited was yellow and foamy, but while it burned his throat, it did not burn his mouth. He stated that upon eating any sort of food, he would bloat and remain that way. He also expressed his opinion that hyperacidity caused gas. According to the veteran, his episodes of morning vomiting or indigestion would be preceded by sweating. The veteran stated that he experienced occasional problems with diarrhea and would experience constipation upon eating cheese. He indicated that he was seen once every three months on average for treatment for his gastrointestinal problems, and that his symptoms persisted despite changing his prescribed medications. The veteran testified that his morning vomiting consisted of a foamy material, but that his weight remained constant. He stated that he had experienced some rectal bleeding, and that he was unaware of the results of stool samples taken. He further indicated that the vomiting and epigastric pain occurred on a daily basis. The veteran stated that he had not been told that he was anemic, and he also claimed that he was unaware that he had a hiatal hernia. The Board has carefully evaluated the above-discussed evidence and concludes that, after resolving all reasonable doubt in favor of the veteran, assignment of an initial 10 percent evaluation for his gastrointestinal disorder is appropriate, but that the preponderance of the evidence is against assignment of a higher rating under any relevant diagnostic code. Regarding the veteran's gastrointestinal disorder, the Board observes that under the current Rating Schedule, there is no specific provision for that disorder. In situations in which the particular disability at issue is not listed under the Rating Schedule, such disability may be rated by analogy to a closely related disease or injury in which not only the functions affected, but also the anatomical location and symptomatology, are closely analogous. See 38 C.F.R. §§ 4.20, 4.27 (1999); Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under 38 C.F.R. § 4.114, Diagnostic Code 7307 (1999), chronic hypertrophic gastritis with small nodular lesions and symptoms warrants assignment of a 10 percent disability evaluation. A 30 percent evaluation is warranted for chronic gastritis with multiple small eroded or ulcerated areas with symptoms. Assignment of a 60 percent evaluation, the highest rating available under Diagnostic Code 7307, is contemplated upon a showing of chronic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Id. Applying the veteran's symptomatology to the evaluative criteria set forth under Diagnostic Code 7307, assignment of a compensable evaluation is not warranted. The veteran is not objectively shown to manifest findings involving any sort of lesions, ulcerated areas, or hemorrhages. The Board specifically notes that, while the disorder is symptomatic, there is no X-ray or other medical evidence of gastric lesions. Accordingly, under that diagnostic code, the veteran's gastrointestinal condition would not warrant assignment of the minimum 10 percent evaluation. However, the Board finds that after considering the veteran's hearing testimony in addition to the objective clinical findings, and after resolving all reasonable doubt in his favor, his symptomatology warrants assignment of a 10 percent evaluation by rating it by analogy to Diagnostic Code 7346. The rating schedule provides that a hiatal hernia characterized by persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, and productive of considerable impairment of health will be rated as 30 percent disabling. A hiatal hernia with two or more of the symptoms for the 30 percent rating but of lesser severity will be rated as 10 percent disabling. 38 C.F.R. Part 4, Diagnostic Code 7346. As noted, the veteran has not been shown, through the objective medical evidence, to experience more than mild tenderness in his abdominal region and episodes of melena or blood in his stools. Further, it is unclear as to the extent to which the veteran's abdominal tenderness and other problems may be due to his nonservice-connected hiatal hernia, which he claimed to be unaware of. He was not objectively noted to experience vomiting or diarrhea, but did indicate that he experienced such symptoms in his hearing testimony of June 1999. In any event, the Board notes that the veteran's complaints of morning nausea have remained relatively consistent throughout the course of this appeal, and may be regarded as credible. In fact, it is apparent that he has persistently recurrent epigastric distress with some pyrosis (heartburn), and regurgitation. Accordingly, the Board finds that the evidence supports assignment of a 10 percent evaluation under code 7346. The Board has considered the representative's request to rate the veteran's gastrointestinal condition under 38 C.F.R. § 4.114, Diagnostic Code 7308 (1999), which contemplates evaluating symptoms consistent with postgastrectomy syndromes, a 20 percent evaluation is contemplated for mild, infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. However, as the veteran's service-connected gastrointestinal disorder has not necessitated surgery, it is the Board's judgment that the disability at issue is more closely analogous to chronic gastritis (Code 7307) or a hiatal hernia (Code 7346). The Board further finds that the objective medical evidence does not disclose an overall disability picture with symptoms to the degree of severity as reported by the veteran. As noted above, the VA rating examination reports essentially showed his abdomen to be completely normal, aside from the nonservice-connected hiatal hernia, and showed his digestive functioning to be essentially normal. Episodic vomiting or diarrhea were not indicated, and the only indication of melena was noted in an August 1995 treatment record. While it is apparent that he has recurrent epigastric distress with some heartburn and regurgitation, there is no medical evidence of substernal or arm or shoulder pain, nor is there any indication of considerable impairment of health attributable to his gastrointestinal condition. Therefore, the Board finds that the preponderance of the evidence is against assignment of an initial evaluation in excess of 10 percent for the veteran's gastrointestinal disorder. In addition, the potential application of Title 38 of the Code of Federal Regulations (1999) have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has carefully considered the evidence presented and the veteran's contentions, but finds that there has been no showing that the disability at issue here, a gastrointestinal disorder, has necessitated frequent hospitalization, or has, by itself, resulted in marked interference with employment, or otherwise renders impracticable the regular schedular standards. In this regard, while the Board acknowledges that the veteran is currently unemployed, such unemployment is not shown to be the result of his service-connected gastrointestinal disorder. The Board finds, therefore, that the evidence fails to show that the veteran is incapable of obtaining or retaining gainful employment as a result of his service-connected gastrointestinal disorder. Therefore, in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted here. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the applicable laws and regulations governing the award of monetary benefits, an initial 10 percent evaluation for the veteran's gastrointestinal disorder is granted. R. F. WILLIAMS Member, Board of Veterans' Appeals