Citation Nr: 0304645 Decision Date: 03/13/03 Archive Date: 03/24/03 DOCKET NO. 91-22 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for duodenal ulcer disease with colonic motility dysfunction. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from February 1980 to June 1990. This appeal arises from an October 1990 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO granted service connection for colonic motility and history of duodenal ulcer, and assigned an initial noncompensable evaluation. The case was previously before the Board in May 1992, May 1994 and June 1996 when it was remanded for additional development. An RO rating action in August 1995 assigned a 10 percent rating for duodenal ulcer disease with colonic motility dysfunction effective to the date of claim; June 13, 1990. In March 1999, the Board remanded the case once again to the RO for further development. The RO has continued the 10 percent rating and returned the case to the Board for further appellate review. FINDINGS OF FACT The veteran's service connected duodenal ulcer disease with colonic motility dysfunction has been manifested by more or less constant abdominal distress with more than occasional constipation, but absent active duodenal ulcer disease. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for duodenal ulcer disease with colonic motility dysfunction have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7319 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the provisions of the Veterans Claims Assistance Act (VCAA) of 2000 became effective during the pendency of this appeal. Among other things, this law requires VA to notify a claimant of the information and evidence necessary to substantiate a claim and includes other notice and duty to assist provisions. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West 2002). VA has enacted regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). These provisions are potentially applicable to the initial rating claim on appeal. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) (where the law or regulation changes during an appeal, VA must consider both the old and the new versions and apply the version most favorable to the claimant). The Court has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West Supp. 2001). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. In this case, the RO has sent the veteran a Statement of the Case (SOC) and multiple Supplemental Statements of the Case (SSOC's) which have advised her of the evidence obtained and reviewed in her case, the applicable regulatory criteria pertaining to her disability and the Reasons and Bases for denying a rating in excess of 10 percent for her disability. She has been advised of her duty to inform VA of all private and VA clinical records which may be relevant, and that VA would provide her with an examination. The Board has remanded this claim on four separate occasions which have contained similar information and notice. In letters dated on August 4, 2000 and September 19, 2000, the RO last notified the veteran of the evidence necessary to substantiate her claim. These letters specifically notified her that she held the ultimate responsibility for submitting evidence capable of substantiating her claim, but that VA would assist her in obtaining any records that she adequately identified and authorized VA to obtain. As such, the Board finds that VA's section 5103 obligations have been satisfied in this case. The provisions of 38 U.S.C.A. § 5103A require VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Specifically, VA has an obligation to make continuing efforts to obtain records in the possession of a Federal department or agency until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). In this case, VA has obtained the veteran's service medical records and her VA clinical records. These records appear complete. She has not reported having filed a claim with the Social Security Administration. The Board, therefore, finds that the provisions of 38 U.S.C.A. § 5103A(b)(3) have been satisfied. VA also has an obligation to assist a claimant in obtaining non-federal records which the claimant adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1) (West 2002). By means of four separate Board remands, VA has obtained all post-service private clinical records identified by the veteran has relevant to her claim on appeal. There are no outstanding requests for pertinent records, and the Board finds that the provisions of 38 U.S.C.A. § 5103A(b)(1) have been satisfied. The provisions of 38 U.S.C.A. § 5103A(d) require VA to obtain medical examination or opinion if necessary to make a decision on the claim. VA has obtained medical examination as necessary to adjudicate the initial rating claim and that examination report, dated November 2000, is adequate for rating purposes. 38 C.F.R. § 4.1 (2002). The record also contains recent VA and private clinical records, which include upper gastrointestinal (GI) series testing as well as extensive documentation of the veteran's clinical findings over the years. On this record, the Board finds that there is now sufficient evidence of record to make a decision on this claim, that the notice and duty to assist provisions of the VCAA have been satisfied, and that no reasonable possibility exists that any further assistance would aid the veteran in substantiating her claim. The veteran claims entitlement to an initial rating in excess of 10 percent for her service connected duodenal ulcer disease with colonic motility dysfunction. Briefly summarized, the veteran was shown by upper gastrointestinal (GI) series testing in December 1981 to have an active duodenal ulcer which, by GI series conducted in September 1982, was shown to have been manifested by only slight scarring on the duodenum. In February 1990, a barium enema demonstrated signs of poor colonic motility. VA examination in October 1990 reflected the veteran's complaint of constipation and occasional gastritis symptoms which she treated with Mylanta. Her physical examination resulted in a diagnosis of history of peptic ulcer disease. By means of a rating decision dated October 1990, the RO granted service connection for colonic motility and history of duodenal ulcer, and assigned an initial noncompensable evaluation. The veteran has appealed the assignment of her initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (separate or "staged" ratings must be assigned in initial rating claims where the evidence shows varying levels of disability for separate periods of time). The record next reflects the veteran's treatment for chronic constipation complaint by Bruce Josten, D.O., P.A., from October 1990 to July 1992. She was initially placed on Lactulose of 1-2 tablespoons as needed (p.r.n.) with recommendation for an increased fiber diet and exercise level. In January 1991, Dr. Josten diagnosed her complaints of constipation and post eating abdominal bloating followed by intermittent vomiting of undigested food as chronic constipation with suspect delayed gastric emptying. Her treatment consisted of Lactulose, high fiber diet and trial use of Reglan. She was also referred to Palep N. Rao, M.D., for further evaluation. The January 1991 evaluation by Dr. Rao elicited the veteran's complaint of chronic and worsening constipation requiring laxative use three or four times per month. She has tried a variety of treatments, such as Lactulose and fiber, without significant improvement. She also reported bloating and nausea with a past history significant for peptic ulcer disease. She denied, however, hematochezia, melena or specific pain. It was noted that an upper GI series within the last year was normal. A small bowel series was deemed normal with a transit time of 3 hours and 15 minutes. A gastric emptying study was also deemed normal. An upper GI series was consistent with some duodenitis with some spasticity in the duodenal bulb, but no ulcer was seen. She was given an assessment of chronic constipation, possible early visceral myopathy vs. acquired, and advised to make dietary changes. Thereafter, the veteran continued to be followed by Dr. Josten for her constipation complaints. She was started on Bethanechol in February 1991 which resulted in a report of marked decrease in abdominal bloating, but increased gas, the next month. His constipation was noted as improved over the next several months. In July 1991, she reported continued gas problems and straining to have one to two small rabbit bit type stools a day. She had taken laxatives on several occasions for her symptoms. She was advised by Dr. Josten to discontinue straining with bowel movements, and that having 1 bowel movement per week would be appropriate. Her constipation was noted as "[m]arkedly improved" in December 1991 and "much improved" in July 1992. On VA examination in October 1992, the veteran reported one to two episodes per week of burning and gnawing sensations in the epigastric region. Her symptoms were usually relieved within one to two hours with use of Mylanta and Maalox or an H2 blocker such as Zantac. She denied nausea, vomiting, heartburn, indigestion, melena, or bleeding. She also reported a right upper quadrant pain with spasm for up to one to two minutes. It was felt that she may be getting a recurrent duodenal ulcer, and an endoscopy was recommended. Clinic notes from Dr. Josten reveal that Metamucil was prescribed to the veteran in April 1993. Clinic notes in April and June 1993 reported that her constipation was stable. A July 1993 examination report by Dr. Rao noted that the veteran's past history of recurrent peptic ulcer had resolved spontaneously. Her only active GI symptoms identified included clinical findings of an elevated CEA and abnormal liver function tests. A subsequent colonoscopy and barium enema were unremarkable. An upper GI series detected a hiatal hernia with a notation that the most likely source of the veteran's recurrent epigastric pain and periodic vomiting was due to gastroesophageal reflux disease (GERD), and that she could be asymptomatic with observance of strict anti-reflux measures. In September 1993, her vague complaint of intermittent nausea and epigastric burning was felt by Dr. Rao to be possibly related to GERD despite the absence of inflammatory changes in the esophagus. As such, her Zantac prescription was increased. A December 1993 clinic note from Dr. Josten described her bowel problems as sporatic but improved. VA intestine examination in July 1995 noted her report of chronic constipation treated with numerous stool softeners, laxatives and enemas. She used to move her bowels once a week or every 7 to 10 days, but reported recent daily bowel movements which were hard, small and rock-like. Her physical examination resulted in a diagnosis of functional constipation. By means of a rating decision dated August 1995, the RO assigned a 10 percent rating for duodenal ulcer disease with colonic motility dysfunction effective to the date of claim. On VA stomach examination in November 1997, the veteran complained of intermittent, but chronic, constipation which had been ineffectively treated with laxatives and fiber therapy. She described episodes of daily bowel movements followed by episodes of one bowel movement every three to four days. She also reported postprandial bloating and early satiety. She was on medication for acid peptic disease and only experienced three to four episodes per year. She weighed 112 pounds with a normal weight from 115-120 pounds. Her physical examination resulted in an impression which included constipation as a possible component of a generalized motility disorder based on report of occasional postprandial bloating and early satiety. A gastric emptying test was identified as a possible diagnostic tool for an underlying gastroparesis that could be treated with an erythromycin elixir or Reglan, fiber supplements and high- fiber diet. It was further noted that an EGD performed in July 1993 did not show evidence of active ulcer disease, and that she did not appear to be suffering from frequent symptoms related to her history of acid peptic disease. In an addendum, the examiner noted that a November 1997 gastric emptying test was deemed normal. Subsequent clinical records from Dr. Josten include a January 1999 notation of red blood by rectum likely due to hemorrhoids. A computerized tomography (CT) scan of the abdomen was negative. In March 1999, she reported a worsening of constipation due to a Propulsid prescription. That same month, anoscopy and proctoscopy were significant only for small diverticuli. In April 1999, she was advised to stay on Pepcid and further GI workup was not recommended. She presented in October 1999 with complaint of reflux symptoms, abdominal bloating, indigestion and general feeling of nonwell-being not relieved by Pepcid. Later that month she later reported some upper abdominal pain, but almost near resolution of her heartburn. In November 1999, the veteran underwent an evaluation by Dr. Rao. Her first problem concerned a change in bowel habits with rectal bleeding and severe constipation. Her second problem concerned recurrent left and right upper quadrant pain with reflux-like symptoms which was not relieved with an H2 blocker or proton pump inhibitor. A colonoscopy resulted in an impression of fixed sigmoid colon, most likely due to intra-abdominal lesions, which was contributing to her constipation. The examiner was also quite certain that her bleeding was attributable to hemorrhoids. An upper endoscopy resulted in impressions of possible Barret's esophagus and gastritis. A December 1999 consultation report from Dr. Rao noted that the upper GI endoscopy suggested a Barrett's esophagus, grade I erosive esophagitis, diffusely inflamed gastric body and biopsy presence of Barret's epithelium. Her upper GI symptoms had improved with Prilosec and antireflux instructions. It was also noted that her severe constipation was due to functional bowel disorder, perhaps colonic inertia, which would best be treated medically. It was noted that she was extremely distressed regarding her constipation. A February 2000 consultation note from Dr. Rao reflected the veteran's report that her epigastric pain was controlled with a combination of Miralax and Propulsid, although she continued to have intermittent bouts of sharp right upper quadrant pain. Her constipation, which was described as severe colonic inertia, was felt to be functional bowel disorder with irritable bowel and reflux. She denied any upper or lower GI complaints, other than right upper quadrant pain, during an April 2000 consultation. An esophagogastroduodenoscopy in May 2000 resulted in impressions of mild esophagitis and gastritis. In July 2000, she was given assessments of Barret's esophagus, gallbladder dysfunction and diarrhea, well maintained with Propulsid. At that time, an esophageal motility study was interpreted as normal. A September 2000 clinic note from Dr. Josten noted her reasonable GI symptomatology. In November 2000, the veteran underwent VA stomach examination with benefit of review of her claims folder. At that time, she reported a long-standing history of epigastric pain (primarily in the left hypochondrium area rather than the episgastrum) and occasional acid reflux. She did not have any tenderness over the area of the pain but could sometimes feel the pain extend up into the left breast area. Her current medications included Zantac, Prilosec, Miralax, Tums and Rolaids. She further described some reflux symptoms which occurred three to four times per week and lasted two to three hours in duration. She further reported that her chronic constipation had been helped considerably with Miralax and bran in the diet. She had a stool almost every day or at least five out of every 7 days. She described her weight as stable. She noted some early satiety but tried to eat three times per day. She avoided foods such as orange juice, spicy foods, spaghetti and tomatoes. She denied vomiting, significant regurgitation, hematemesis or melena. She did have heartburn often. Her physical examination resulted in diagnoses of peptic ulcer disease, remote history of duodenal ulcer, now with Barrett's esophagus as a result of chronic gastroesophageal reflux; recurrent left upper quadrant pain consistent with irritable bowel syndrome; and abnormal gallbladder motility study. In an addendum, the examiner noted that the veteran manifested symptoms of irritable bowel syndrome. Her current symptoms attributable to reflux and Barret's (with Barret's being a progression of reflux) were controlled with a frequency as described by the veteran. In the opinion of the examiner, the veteran's symptoms were not continuous nor was there recurrent severe symptoms two to three times a year averaging 10 days in duration. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2002). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). A rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture to accurately represent the elements of disability present. 38 C.F.R. § 4.2 (2002). As such, the determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In its evaluation, the Board shall consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002). The Board considers all the evidence of record, but only reports the most probative evidence regarding the current degree of impairment which consists of records generated in proximity to and since the claims on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). VA has defined competency of evidence as follows: "(1) 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 would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) 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 facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. §3.159 (2002). The severity of diseases of the digestive system are ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.114. The preamble instructs 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 will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability picture warrants such elevation. The RO has rated the veteran's duodenal ulcer disease with colonic motility dysfunction as 10 percent disabling under Diagnostic Code 7305. This rating contemplates mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate duodenal ulcer with recurring episodes of severe symptoms two or three times per year averaging 20 days in duration; or with continuous moderate manifestations. A 40 percent rating contemplates moderately severe disability, which is less than severe, but accompanied by 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. The medical evidence of record conclusively demonstrates that the veteran's duodenal ulcer disease has been inactive since 1982. In this respect, upper GI series testing in September 1982 was significant only for slight duodenum scarring. A January 1991 upper GI series performed by Dr. Rao was consistent with some duodenitis, but no active ulcer. Upper GI series testing in April 1993, July 1993 and December 1999 also showed no evidence of active ulcer disease. In the absence of symptoms attributable to duodenal ulcer disease, the Board finds, by a preponderance of the evidence, that the veteran has not met the criteria for a rating in excess of 10 percent under Diagnostic Code 7305. The Board has also considered whether a higher rating might be in order under alternative schedular criteria. In this regard, it is clear from the record that the predominant feature of the veteran's service connected disability regards her complaint of chronic constipation. She is service connected for colonic motility dysfunction which has variously been described by private and VA examiners as functional bowel disorder with irritable bowel and reflux, generalized motility disorder, colonic inertia and irritable bowel syndrome. Clearly such symptoms mirror the criteria for evaluation of irritable colon syndrome under Diagnostic Code 7319, which provides a 10 percent rating for moderate disability manifested by frequent episodes of bowel disturbance with abdominal distress. The next higher rating of 30 percent requires severe disability with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. This is the maximum evaluation provided by Diagnostic Code 7319. Review of the record reveals the veteran's long-standing complaint of chronic constipation treated, to varying degrees of success, with Lactulose, Reglan, laxatives, Bethanechol, Metamucil, dietary changes and exercise. She has had periods of "improved," "markedly improved" and "stable" symptoms, as described by Dr. Josten. However, it appears that she has more or less constant abdominal distress with some diarrhea, but mostly constipation. With application of the benefit of the doubt rule, the Board finds that the veteran has met the schedular criteria for a 30 percent rating under Diagnostic Code 7319, effective to the date of claim; June 13, 1990. As noted previously, this is the maximum available rating for irritable colon syndrome. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2002). The preponderance of the evidence, however, weighs against a rating in excess of 30 percent under any other criteria which could be applied. In this respect, there has been no evidence of definite partial obstruction, severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage during the appeal period, which would be a requirement for a higher rating under Diagnostic Code 7301 and, as already discussed, the criteria for a rating in excess of even 10 percent for duodenal ulcer disease have not been satisfied. In so deciding, the Board has deemed the veteran as competent to describe her gastrointestinal symptoms. In fact, the Board has relied on her report of symptoms in the assignment of the 30 percent rating under Diagnostic Code 7319. The competent medical evidence, which includes medical opinion and upper GI series testing, fails to establish her entitlement to further compensation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. §3.159 (2002). The Board further notes that, as the veteran is not in receipt of an award of service connection for GERD and Barret's esophagus, consideration of compensation for such symptoms is statutorily prohibited. 38 U.S.C.A. § 1155 (West 2002). The benefit of the doubt rule has been applied in her favor, see 38 U.S.C.A. § 5107(b) (West 2002), and there is no basis for consideration of a staged rating. See Fenderson, 12 Vet. App. 119 (1999) ORDER A 30 percent rating, but no higher, for duodenal ulcer disease with colonic motility dysfunction is granted, subject to regulations which govern the award of monetary benefits. ____________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.