Citation Nr: 0001309 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-18 352 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for a hiatal hernia with reflux and a history of duodenal ulcer, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for tendonitis of the left shoulder with restriction of motion, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from August 1957 to July 1961, and from August 1963 to January 1982. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision in which increased evaluations for, inter alia, a hiatal hernia with reflux and a history of duodenal ulcer, and tendonitis of the left shoulder with restriction of motion were denied. In Floyd v. Brown, 9 Vet. App. 88 (1996), the U.S. Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had fully opportunity to present the increased-rating claim before the RO. Bagwell, at 339. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran's service-connected hiatal hernia with reflux and history of duodenal ulcer is currently manifested by no more than mild symptomatology. 3. In June 1998, prior to the promulgation of a decision in the appeal, the veteran requested withdrawal of his appeal concerning the issue of increased evaluation for the service- connected tendonitis of the left shoulder with restriction of motion. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for the service-connected hiatal hernia with reflux and a history of duodenal ulcer have not been satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346-7305 (1999). 2. The criteria for withdrawal of a Substantive Appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2) (West 1991); 38 C.F.R. §§ 20.202, 20.204(b),(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Evaluation for Hiatal Hernia with Reflux The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition has worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). The veteran has not alleged that any records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. Accordingly, the Board finds that all relevant facts have been properly developed and the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. In considering the severity of a disability, it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2 (1999). A rating decision dated in April 1982 originally granted service connection for a hiatal hernia with reflux and a history of duodenal ulcer. A 10 percent evaluation was assigned, effective in February 1982. This evaluation has been confirmed and continued to the present. The veteran has appealed the assignment of the 10 percent evaluation for the service-connected hiatal hernia with reflux and history of duodenal ulcer. In particular, he avers that he experiences chronic moderate and persistent epigastric symptoms including regurgitation, difficulty swallowing, and heartburn after every meal. He further states that he experiences episodes of regurgitation every night, even while sitting, difficulty sleeping, and bilateral arm and shoulder pain. However, the medical evidence of record does not show that the criteria for an evaluation higher than 10 percent for this condition are met. Service-connected disabilities are rated in accordance with VA's Schedule for Rating Disabilities (Schedule). The ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § Part 4 (1999). 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. Evaluations are based upon a lack of usefulness of these systems in self- support. 38 C.F.R. § 4.10 (1999). 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 for the higher rating. 38 C.F.R. § 4.7 (1999). The veteran's hiatal hernia with reflux and a history of duodenal ulcer is evaluated under Diagnostic Code 7346-7305, for hiatal hernia evaluated under the criteria for duodenal ulcer. See 38 C.F.R. § 4.27 (1999). Under Diagnostic Code 7305, a higher, 20 percent, evaluation is warranted for moderate symptoms involving recurring episodes of severe symptoms occurring two or three times a year and averaging ten days in duration; or, for continuous moderate manifestations. The criteria defines severe symptoms as those symptoms involving pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. A November 1997 VA examination report is of record and reflects that the veteran subjectively complained of such symptoms as pain at night with acid and vomitus into the throat, reflux, regurgitation even while sitting, difficulty sleeping, and having food occasionally hang up in his throat. Yet, the examiner recorded objective observations of a soft abdomen with moderate tenderness in the epigastrium, but no rebound tenderness, hepatic or splenic enlargement, or masses. The veteran did not complain of, and the physician did not find, hematemesis or melena, anemia, abnormal bowel movements, or weight loss productive of health impairment. Rather, the report shows the veteran is slightly overweight, well developed, and in no acute distress. A higher, 30 percent, evaluation could also be warranted under Diagnostic Code 7346 for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. However, again, the medical evidence does not show that the required manifestations are present. While the November 1997 report shows complaints of difficulty swallowing, heartburn, and regurgitation, as discussed above, the examiner found only that the veteran exhibited moderate tenderness in his epigastrium, without rebound tenderness, hepatic or splenic enlargement, or masses. VA treatment records dated from November 1993 through April 1997 primarily document treatment and follow-up care for a heart condition, but do reflect that the veteran has been diagnosed with gastroesophageal reflux disease, for which Tagamet has been prescribed. And, in his May 1998 substantive appeal, the veteran further averred that he also experiences bilateral arm and shoulder pain, which he attributes to his gastrointestinal disability. While VA treatment records do evidence complaints of and treatment for instances of shoulder pain, subsequent entries further detail treatment for a left shoulder disability, for which the veteran is service-connected and receiving compensation. In addition, a May 1998 VA examination report shows complaints of chest pain occurring weekly, but associates that symptom with his heart condition, diagnosed as mitral valve prolapse syndrome-a disability, again, for which the veteran is separately service-connected and receiving compensation. These symptoms of chest and shoulder pain therefore cannot be considered in evaluating his service-connected hiatal hernia with reflux. See 38 C.F.R. § 4.14 (1999). The veteran has stated his gastrointestinal disability causes daily chronic symptoms, that he experiences exacerbations of his symptoms every seven to ten days lasting three to four days in duration, that he experiences continuous moderate manifestations, and that he experiences persistent epigastric distress. However, the medical evidence simply does not concur. VA treatment records contain no entries describing instances in which the veteran reported for treatment of exacerbations of his hiatal hernia with reflux and history of duodenal ulcer, including vomiting, hematemesis, melena, abdominal pain, or weight loss. Moreover, these records do not show he has been found to exhibit anemia, or that he required treatment for recurring exacerbations of severe symptoms occurring two to three times per year and lasting an average of ten days. Finally, these records simply do not establish that the veteran has required treatment for epigastric distress that has produced considerable impairment of the veteran's health. As for weight loss, the report of VA examination in 1992 records his weight as 212 pounds, and the report of VA examination in 1998 records his weight as 216 pounds. In the November 1997 report, the examiner noted that the veteran had recently been prescribed Prilosec, and that he had experienced some improvement of his symptoms as a result but continued to have slight reflux and coughing at night. It is to be expected that the veteran would experience some symptomatology, and the Board notes that the 10 percent currently awarded contemplates, under Diagnostic Code 7346, two or more of the symptoms found in the criteria for 30 percent-dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain-but manifested to less severity than that required to warrant the 30 percent evaluation. In addition, Diagnostic Code 7305 provides a 10 percent evaluation for symptoms that are mild. After consideration of the evidence, the Board finds that the criteria for a rating higher than 10 percent under Diagnostic Codes 7305 or 7346 are not met. Specifically, the medical evidence simply does not establish that the veteran experiences symptoms of his hiatal hernia with reflux and history of duodenal ulcer that are more than mild in severity, or that he has suffered episodes of severe manifestations occurring two to three times per year and averaging 10 days in duration-as required by Diagnostic Code 7305; or that he has recurrent epigastric distress productive of considerable impairment of health, involving symptoms of dysphagia, pyrosis, and regurgitation accompanied by substernal, arm, or shoulder pain-as required by Diagnostic Code 7346. This does not, however, preclude granting a higher evaluation for this disability. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board first notes that the scheduler evaluations in this case are not inadequate. As discussed above, higher evaluations are provided for greater disability, but the required manifestations are not present. Second, the Board finds no evidence of an exceptional disability picture in this case. The record does not show that the veteran has required hospitalization or frequent treatment for this disability. Moreover, the record does not show that this disability alone interferes with his employability. There is no evidence that the impairment resulting solely from his hiatal hernia with reflux and history of duodenal ulcer warrants extra-schedular consideration. Rather, for the reasons noted above, the Board concludes that the impairment resulting from this disability is adequately compensated by the 10 percent schedular evaluation under Diagnostic Code 7346-7305. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) (1999) is not warranted. II. Withdrawal of Appeal for Increased Evaluation for Tendonitis of Left Shoulder Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (1999). Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204(c) (1999). In his VA Form 9 filed in June 1998, the veteran specifically withdrew his appeal as to the issue of entitlement to an increased evaluation for his service-connected tendonitis of the left shoulder with restriction of motion. As the appellant has withdrawn his appeal as to this issue, there remain no allegations of errors of fact or law for appellate consideration concerning this issue. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed without prejudice. ORDER An evaluation higher than 10 percent for a hiatal hernia with reflux and a history of duodenal ulcer is denied. The appeal concerning the issue of an increased evaluation for tendonitis of the left shoulder with restriction of motion is dismissed. MARY GALLAGHER Member, Board of Veterans' Appeals