Citation Nr: 0810296 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-28 448A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 20 percent for a duodenal ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from July 1954 until October 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. The Board also notes that additional evidence has been received since the case was certified for appeal. That evidence includes a December 2007 statement from a private physician that the veteran has a history of peptic ulcer disease and a January 2008 statement from the veteran regarding issues other than a duodenal ulcer. This evidence was received after the last RO review. The Board has, accordingly, reviewed the additional evidence and is of the opinion that it is not pertinent to the issue on appeal. Specifically, the only mention of an ulcer is noted to be as a history of peptic ulcer disease, which is not in dispute. As such, the records have no bearing on the issue of the rating for a duodenal ulcer. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. FINDING OF FACT Throughout the rating period on appeal, the subjective evidence of record reflects persistent abdominal pain and rectal bleeding; objectively there is no clinical evidence of anemia, weight loss or recurrent incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for the veteran's duodenal ulcer have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.110, 4.112, 4.113, 4.114, Diagnostic Code (DC) 7305 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The RO has rated the veteran's duodenal ulcer at 20 percent pursuant to DC 7305. Diseases of the digestive system, particularly within the abdomen, which produce a common disability picture characterized by varying degrees of abdominal pain, anemia, and disturbances in nutrition are considered coexisting abdominal conditions and do not lend themselves to distinct and separate disability evaluations without violating the fundamental principles of pyramiding outlined in 38 C.F.R. § 4.14, §§ 38 C.F.R. 4.113, 4.114 (2007). In order to be assigned a higher than the current 20 percent rating, the evidence must show: * A moderately severe duodenal ulcer that is less than severe but with 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 40 percent rating). The Board has reviewed the evidence of record and finds that the evidence does not support for an award of the next-higher 40 percent rating under DC 7305. At the outset, it is noted that the overall weight of the evidence does not indicate that anemia or weight loss is a component of the veteran's disability picture. While the record does contain numerous medical notes indicating the veteran has suffered from rectal bleeding, upon VA examination in December 2006, there were no signs of anemia related to his duodenal ulcer. This examination additionally documented no signs of significant weight loss or malnutrition. The VA examination in December 2006 also addressed the symptom of incapacitating episodes. At the time of this examination the veteran reported no periods of incapacitation due to stomach or duodenal disease. The Board takes notice that the veteran's private doctor has submitted a note in January 2008 indicating that the veteran was "non ambulatory [with] use [of] a wheelchair or walker" and has a history of peptic ulcer disease. While this note confirms use of a wheelchair or walker, it does not reference weight loss or anemia, nor indicate recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The Board acknowledges the veteran's written statements and a statement from his wife discussing the worsening of his condition due to duodenal ulcers. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran and his spouse are competent to report symptoms or observations because this requires only personal knowledge, not medical expertise, as it comes to them through their senses. Layno, 6 Vet. App. at 470. As a lay persons, however, they are not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Although the statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. at 494-95; Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board finds that the medical findings, which directly address the criteria under which the service-connected disability is evaluated, more probative than the subjective evidence of an increased disability. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant' s employment and daily life. Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores, slip op. at 5-6. In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the veteran in March 2004 and June 2004, prior to the initial RO decision that is the subject of this appeal. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. In July 2005, he was also asked to submit evidence and/or information in his possession to the RO. Moreover, with respect to the Dingess requirements, the veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in January 2007. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. The Board acknowledges that the VCAA letters sent to the veteran in March 2004 and June 2004 do not meet the requirements of Vazquez-Flores and are not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with correspondence regarding what was needed to support his claim. Specifically, supplemental statements of the case dated in May 2007, September 2007, and October 2007 discussed the relevant regulations which related to the criteria for a higher rating. Based on that evidence, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, he and his wife both issued separate statements received in May 2004 which indicate the worsening of his condition and the increased pain he was experiencing. Additionally, he submitted a note from his private physician indicating that he was non- ambulatory using a wheelchair or walker. These statements and submissions demonstrate his actual knowledge in understanding the requirement that his condition must deteriorate in order to support his claim for an increased rating. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records and private treatment records. In addition, he was afforded a VA medical examination in December 2006. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An rating in excess of 20 percent for a duodenal ulcer is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs