Citation Nr: 0007646 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 91-21 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fort Harrison, Montana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for gastric ulcer with reflux. 2. Entitlement to an initial compensable evaluation for right lateral thigh and buttocks varicosities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from May 1978 to August 1989. This appeal was initially brought to the Board of Veterans Appeals (the Board) comes from a rating action in May 1990 by the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Fort Harrison, Montana. Service connection is also in effect for degenerative disc disease of the lumbar spine, evaluated as 60 percent disabling; residuals of meningitis with vascular headaches, rated as 50 percent disabling; bronchial asthma, evaluated as 10 percent disabling; eczema and tinea pedis, evaluated as 10 percent disabling; fibrocystic changes of the right breast, chronic right maxillary and frontal sinusitis, and urinary tract infections, all evaluated as noncompensably disabling. During the course of the current appeal, the M&ROC granted entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) retroactively to August 11, 1989. Other actions have been taken during the course of the current appeal which are no longer relevant to the pending claims. This case was remanded by the Board in November 1991 and February 1993 for additional development of the record. In a decision in December 1998, the Board found that the veteran had not submitted a well-grounded claim of entitlement to service connection for a chronic acquired kidney disorder, or for a chronic acquired disorder of the left knee, and denied the appeal on both of those issues. The Board also denied entitlement to an evaluation in excess of 60 percent assigned for degenerative disc disease of the lumbar spine; and denied entitlement to an evaluation in excess of 50 percent for residuals of meningitis with vascular headaches. The Board remanded the case for development on the issues herein concerned. The development was completed, the M&ROC continued the prior ratings and after appropriate procedures, the case was returned to the Board. During the course of the current appeal, the veteran has introduced claims for entitlement to service connection for other disabilities including but not limited to a throat disorder alleged to be secondary to gastric reflux, and other benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). These issues are not part of the current appeal. In a VA Form 21-4138 received from the veteran, dated in September 1999, she stated that she was "not claiming sinus or reflux at this time", but rather that she was "claiming that the reflux is causing infections in the throat requiring antibiotics". The Board notes that the issues shown on the front cover have long been under consideration as part of the current appeal; arguments have been presented on numerous occasions in that regard; and the case was most recently remanded for additional evidence thereon. In this light, the Board does not find that the correspondence of September 1999 from the veteran constitutes withdrawal of her claim with regard increased rating for her already service-connected gastrointestinal disability as to fully comply with 38 U.S.C.A. § 7105(b)(2) (West 1991); 38 C.F.R. §§ 20.202, 20.204(b),(c) (1999), and accordingly, that issue remains as part of the current appellate review. The Board also notes that with regard to these two remaining appellate issues, the case involves an appeal as to the initial rating of the herein concerned disability, rather than an increased rating claim where entitlement to compensation had previously been established. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial rating cases, a separate rating can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The issues have been accordingly characterized as reported on the title page. FINDINGS OF FACT 1. The veteran has complaints of constant heartburn increased with eating and drinking, regurgitation on a daily basis, and demonstrated mild to moderate gastroesophageal reflux, the aggregate of which symptoms more nearly approximate continuous moderate manifestations without anemia or weight loss or other more significant symptoms. 2. The veteran has a single, asymptomatic varicosity on one leg, without demonstrated circulatory impairment of any kind; her lower extremity pain and any complaints to include swelling at only the ankles which is not diminished by elevation, etc., are unrelated to varicose veins. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 20 percent for gastric ulcer with reflux are reasonably met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.14, 4.20, 4.25, 4.113, 4.114, Diagnostic Code 7305 (1999). 2. The criteria for an initial (compensable) evaluation for right lateral thigh and buttocks varicosities are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.104, Diagnostic Code 7120 as in effect before and after January 12, 1998 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. The Board has also considered all regulatory provisions which are potentially applicable through the assertions and issues raised in the evidence of record as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Conclusions reached on any given medical issue to include a determination with regard to such things as degree or extent of functional impairment of a disability, etc., the Court has repeatedly admonished that VA cannot substitute its own judgment or opinion for that of a medical expert. See, i.e., Colvin v. Derwinski, 1 Vet. App. 761 (1991). The Court has also held that a determination with regard to both entitlement to the assignment of specific ratings must be made upon a review of the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. Brown v. Brown, 5 Vet. App. 413 (1993). When an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies are to be avoided, as are the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor are ratings assigned to organic diseases and injuries to be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (1999). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (1999). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In every instance where the schedule does not include a noncompensable evaluation for a diagnostic code, a noncompensable rating is assignable when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 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. 38 C.F.R. § 3.321(b(1). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Gastric ulcer with reflux Special Criteria Under 38 C.F.R. § 4.113, there are 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, pain, anemia, disturbances in nutrition. Consequently, certain coexisting diseases in this area, do not lend themselves to distinct and separate disability evaluations without violating fundamental principles relating to pyramiding (38 C.F.R. § 4.14). A gastric ulcer, cited under Code 7304, may be rated by comparison to duodenal ulcer under Diagnostic Code 7305, which provides for a 10 percent rating when mild with recurring symptoms once or twice yearly. A 20 percent rating is assignable when moderate with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations. A 40 percent rating is assignable when moderately severe with less than severe symptoms but impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is assignable when severe, with delineated symptoms producing definite impairment of health. 38 C.F.R. § 4.114; Diagnostic Code 7305. A 30 percent evaluation may be assigned for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent evaluation may be assigned with two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114; Diagnostic Code 7346. Factual Background A review of the service medical records shows the veteran had a previous of history of ulcer with recurrence in February 1979. An upper gastrointestinal x-ray at this time showed a possible pyloric channel ulcer. Additional upper gastrointestinal x-ray showed an ulcer in the pyloric channel. A July esophagogastroduodenoscopy showed prepyloric erosion. Microscopic diagnosis showed campylobacter pyloric, acute and chronic gastritis. VA conducted a general medical examination of the veteran in October 1989. A clinical of the digestive system disclosed the abdomen was soft and flat. There were no scars, masses or tenderness other than a lower midline abdominal scar from a previous appendectomy. The pertinent diagnosis was recurrent peptic ulcer disease. In May 1990 the RO granted entitlement to service connection for gastric ulcer with assignment of a noncompensable evaluation. VA outpatient records show that the veteran has complained of recurrent diarrhea, and on occasion, of nausea or abdominal cramping. However, for the most part, these annotations have been in connection with her numerous other disabilities and/or medications taken therefor, and have not been related by medical opinion, as identified in the clinical records, to her service-connected gastric ulcer disease. A colonoscopy to her cecum with biopsies, undertaken by VA in August 1997 due to her complaints of chronic diarrhea, was negative. On VA examination in May 1999, the veteran gave a history of gastric ulcer diagnosed in about 1980. She also reported having had a hiatal hernia and said she took medications to control her symptoms. She complained of constant heartburn increased with eating and drinking, and said she had regurgitation at least once a day. The veteran reported that she had constant esophagus pain and epigastric burning was constant as well. There had been no change or blood in her stools and no weight loss. She drank 2 cups of coffee a day. On examination, the abdomen was soft, nontender and without organomegaly. Symptoms (pending upper gastrointestinal series) were felt to be suggestive of gastroesophageal reflux disease (GERD) and/or esophagitis. On upper gastrointestinal series with barium in June 1999, the veteran's swallowing mechanism was intact and there was no difficulty with the barium solution. The esophagus, stomach, duodenal bulb and sweep appeared unremarkable. There was mild to moderate gastroesophageal reflux. Analysis Initially, the Board finds that the veteran's claim of entitlement to an evaluation in excess of 10 percent for her gastrointestinal disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of her gastrointestinal disability (that are within the competence of a lay party to report) are sufficient to conclude that her claim for an initial evaluation in excess of 10 percent for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). In this case, the veteran has ongoing diarrhea and occasional nausea. Some of these symptoms are felt to be due to her other disabilities and may be related on occasion to her many medications therefore. A recent colonoscopy and biopsies were entirely negative. However, her symptoms also include complaints of constant heartburn increased with eating and drinking, regurgitation virtually on a daily basis, and demonstrated mild to moderate gastroesophageal reflux. And while these symptoms and clinical findings are not unequivocal, the Board finds that they, in the aggregate, more nearly approximate continuous moderate manifestations without anemia or weight loss or other more significant symptoms as to warrant an initial 20 percent rating under Code 7304, which is the most appropriate code for rating her gastrointestinal disability. The Board finds no basis upon which to assign staged ratings. See Fenderson, supra. Right lateral thigh and buttocks varicosities Special Criteria Absent Secretarial determinations to the contrary, the Court has held that when there is a change in regulations, an appellant is entitled to the version which is more favorable. Pursuant to 38 C.F.R. § 4.104, when rating varicose veins (unde the regulations in effect prior to January 12, 1998 when they changed), a noncompensable rating was assigned when there were mild symptoms, or with no symptoms, under Code 7120. A 10 percent rating was assignable if there were moderate symptomatology with varicosities of the superficial veins below the knees, with symptoms of pain or cramping on exertion. Higher evaluations were assignable for unilateral or bilateral moderately severe involvement with circulatory impairment, etc. under Code 7120. Under provisions in effect since January 1998, a noncompensable rating is assignable when asymptomatic palpable or visible varicose veins are present. A 10 percent rating is assignable when there is intermittent edema of the extremity or aching and fatigue in the leg with prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is assignable when there is persistent edema, incompletely relieved by elevation of the extremity with or without beginning stasis pigmentation or eczema under Code 7120. Factual Background A service medical record dated in 1984 shows the veteran reported with complaints of varicosities. Clinical inspection was negative for any varicosities An October 1989 VA general medical examination was negative for any large varicosities. An early December 1993 vascular examination disclosed minimal varicosities on the right lateral thigh and buttocks area. A mid-December 1993 examination disclosed no evidence of varicosities. In August 1994 the RO granted entitlement to service connection for varicosities on the right lateral thigh and buttocks area with assignment of a noncompensable evaluation. VA outpatient records show periodic complaints of leg cramps and other symptoms, but there are no findings that these symptoms have been related to varicosities. On VA special examination in June 1999 the veteran reported lower extremity pain and swelling. She reported having ongoing problems with her back and said that her ankles would swell up by the end of the day. She had discomfort in her legs after walking for one block and this was not relieved by rest. She felt a hot burning sensation in her legs, which was also ongoing at night while at rest. She denied any significant swelling of her veins, and indicated that she had never had any venous problems in the past or a history of phlebitis or vein surgery. The examiner noted that the veteran was living in the Deer Lodge, was 100 percent disabled from other problems and was receiving her care through VA in Helena. On examination there were no gross varicosities of the lower extremities. There was minimal swelling at the veteran's ankles but not above. All of her pulses were palpable including popliteal. Her femoral Doppler's were within normal limits. There was no saphenofemoral incompetency and no significant varicosities. There was a small branch varicosity at the posterior aspect of her left knee which was more reticular. The arterial blood flow test of her left lower extremity was greater than 1.0. The examiner opined that the veteran was without any evidence of any significant venous disease. There was no evidence of saphenofemoral incompetence, no varicosities and no changes due to chronic insufficiency. Her arterial systems appeared to be intact. It was felt that her symptoms were not due to claudication as she had this at rest, that it failed to resolve with rest, and that it was most likely that any leg pain was due to her chronic back lesion. Analysis Initially, the Board finds that the veteran's claim for entitlement to an initial compensable rating for right lateral thigh and buttocks varicosities is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board also notes that, in general, an allegation of increased disability is sufficient to establish as well- grounded a claim seeking an increased rating. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of her varicosities (that are within the competence of a lay party to report) are sufficient to conclude that her claim for an initial compensable evaluation for that disability is well grounded. King v. Brown, op. cit. The Board is also satisfied that all relevant facts have been properly developed with respect to the disability at issue and that no further assistance to the veteran is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a); Godwin v. Derwinski, op. cit. White v. Derwinski, op. cit. The veteran has complained that she has pain in her lower extremities, and swelling which does not change whether she is at rest or not. Recent venous and arterially targeted examinations have shown virtually no sign of circulatory problems of any kind. In fact, she had only a single small branch varicosity at the posterior aspect of her left knee which was more reticular and without symptoms. Absent any evidence of more than minimal symptoms, at the very most, a compensable rating is not assignable under the criteria in effect either before or since January 12, 1998. Accordingly, there is no basis for assignment of staged ratings. See Fenderson, supra. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an initial compensable evaluation for right lateral thigh and buttocks varicosities. Additional Matter The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board notes that while the RO cited the provisions of this regulation, it did not dwell at length thereon. However, this limited consideration is entirely understandable given the facts as related to these two remaining appellate issues, and more particularly, since a TDIU due to service-connected disabilities has been in effect since 1989. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of her case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). Noting the current ratings in effect, including the TDIU, the current schedular criteria adequately compensate the veteran for the current nature and extent of her service-connected disabilities herein concerned. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to an initial evaluation of 20 percent for gastric ulcer with reflux is granted, subject to the regulations controlling the payment of monetary awards. Entitlement to an initial compensable evaluation for right lateral thigh and buttocks varicosities is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals