Citation Nr: 1144428 Decision Date: 12/05/11 Archive Date: 12/14/11 DOCKET NO. 04-20 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for the Veteran's service-connected duodenal ulcer with gastritis, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1941 to July 1946, and from November 1946 to August 1947. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. In March 2007 and April 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The development is complete. The matter is returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected duodenal ulcer with gastritis is manifested by recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. CONCLUSION OF LAW The criteria for a 40 percent disability rating, but no higher, for the Veteran's duodenal ulcer with gastritis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.114, Diagnostic Codes (DCs) 7304, 7305, 7307, 7346 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board observes that an unappealed rating decision of September 1947 granted service connection for the Veteran's duodenal ulcer. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed. Thus, the Board will consider the time from March 23, 2002, until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2011). Service connection is currently in effect for a duodenal ulcer with gastritis, rated at 10 percent under DC 7305. 38 C.F.R. § 4.114. DC 7305 provides ratings for duodenal ulcer. Mild duodenal ulcer, with recurring symptoms once or twice yearly, is rated as 10 percent disabling. Moderate duodenal ulcer, with recurring episodes of severe symptoms two or three times a year averaging ten days in duration; or with continuous moderate manifestations, is rated as 20 percent disabling. Moderately severe duodenal ulcer, with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year, is rated as 40 percent disabling. Severe duodenal ulcer, with 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, is rated 60 percent disabling. The DC does not contain a definition of "incapacitating episodes." 38 C.F.R. § 4.114. The Veteran's service-connected duodenal ulcer includes gastritis. Further, the Veteran has been noted to have gastroesophageal reflux disease (GERD), a hiatal hernia, and a gastric ulcer. See March 2002 upper gastrointestinal series and April 2002 RO Rating Decision (summary of past assessments). Thus, the Board will also consider the relevant regulations for these disabilities. 38 C.F.R. § 4.114. DC 7307 provides ratings for hypertrophic gastritis. Chronic hypertrophic gastritis, with small nodular lesions, and symptoms is rated as 10 percent disabling. Chronic hypertrophic gastritis, with multiple small eroded or ulcerated areas, and symptoms, is rated as 30 percent disabling. Chronic hypertrophic gastritis, with severe hemorrhages, or large ulcerated or eroded areas, is rated 60 percent disabling. Atrophic gastritis, which is a complication of a number of diseases, including pernicious anemia, is to be rated on the underlying condition. 38 C.F.R. § 4.114. DC 7346 provides ratings for a hiatal hernia. A hiatal hernia with two or more of the symptoms for the 30 percent rating of less severity is rated as 10 percent disabling. A 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, is rated as 30 percent disabling. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. DC 7304 provides ratings for a gastric ulcer. A mild ulcer, with recurring symptoms once or twice yearly, is rated as 10 percent disabling. A moderate ulcer, with recurring episodes of severe symptoms two or three times a year averaging ten days in duration; or with continuous moderate manifestations, is rated as 20 percent disabling. A moderately severe ulcer, with less than severe but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year, is rated as 40 percent disabling. Severe ulcer, with 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, is rated 60 percent disabling. The DC does not contain a definition of "incapacitating episodes." 38 C.F.R. § 4.114. VA regulations provide that, for purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, which is sustained for three months or longer. The term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, which is sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with an inability to regain the weight despite appropriate therapy. "Baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Ratings under DCs 7301 to 7329, inclusive, and DCs 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the DC that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Board will now apply these criterion to the facts of the case. Throughout his appeal, VA treatment records document the Veteran's complaints of chronic epigastric pain, epigastric burning, and abdominal pain. The Veteran has denied experiencing dysphagia. The Veteran has been diagnosed with chronic peptic ulcer disease. The records also document that the Veteran has also been diagnosed with rectal carcinoma and prostate cancer - unrelated to his duodenal ulcer. Specifically, in March 2002, a gastrointestinal (GI) series was performed by the VA Medical Center (VAMC), which showed that the Veteran had a hiatal hernia with mild gastroesophageal reflux (GERD). This series also showed that the Veteran had a deformed duodenal bulb. No ulcers were seen. At his April 2002 VA examination, the Veteran reported experiencing heartburn, upper abdominal pain, red rectal bleeding, and diarrhea. The Veteran used Depends. The VA examiner determined that these symptoms involving red rectal bleeding, diarrhea, and Depends were due to the colon polyps that the Veteran had surgically removed. The VA examiner diagnosed the Veteran with a "past history" of duodenal ulcer, a hiatal hernia, and a gastric ulcer, as shown by an endoscopy. At a May 2002 VA treatment visit, the Veteran's reflux was stable. In February 2003, the Veteran had an endoscopy performed by his private physician. Prior to the procedure, the Veteran reported experiencing abdominal pain. Following this procedure, the Veteran was diagnosed with hiatal hernia and erosive antral gastritis with biopsy. In August 2003, another GI series was conducted by the VAMC. The Veteran was able to swallow the barium readily. There was no stricture or ulcer seen in the esophagus. The procedure revealed that the Veteran had "an irregular ulcer along the antrum [of the stomach], and malignancy cannot be excluded." The VA physician remarked that an endoscopy was necessary to rule out an ulcerated tumor. To address these potential malignancy concerns, the Veteran was afforded an esophagogastroduodenoscopy (EGD) with bioposies by a VA Gastroenterologist in November 2003. There were no lesions seen on the oropharynx and larynx. There was no gross endoscopic evidence of Barrett's Epitelium on the esophagus. The mucosa of the esophagus appeared well. There were no ulcerations, blood clots, or "coffee ground like" material seen in the stomach. The pylorus and duodedum were normal. The impression of the VA physician was that the Veteran had hypertropic gastritis. In a March 2005 treatment record, the Veteran reported that his symptoms occurred mostly at night and were relieved with medication. At the Veteran's April 2005 VA examination, the Veteran's symptoms had increased; therefore, his medication had been increased accordingly. The Veteran did not experience nausea or vomiting. The VA examiner diagnosed the Veteran with duodenal ulcer. In January 2007, the Veteran had another EGD and a colonoscopy performed by his private physician. In its April 2011 Remand, the Board attempted to obtain additional private treatment records from Dr. T. However, VA was unable to obtain these records because the Veteran did not respond to the April 2011 letter requesting the necessary authorizations. Nonetheless, the EGD results were reported by the Veteran to his VA physician in January 2007. In a January 2007 VA treatment note, the VA physician indicated that the impression from the private EGD was hiatal hernia and antral gastritis. During the procedure, the Veteran had a rectal polyp and internal hemorrhoids removed. The Veteran reported that he was doing well following the procedure. At a December 2007 VA outpatient treatment visit, the Veteran's weight was described as "stable." The Veteran denied experiencing nausea or vomiting. He reported occasional abdominal complaints. In September 2008, the Veteran had another EGD performed by his private physician. Following the procedure, the Veteran was diagnosed with gastric polyps, colonic polyps, and irregular rectal anastomosis. In April 2011, the Veteran was afforded another VA examination to assess the current severity of his service-connected disability. At that time, the Veteran took medication for his duodenal ulcer, and his response to that treatment was fair. He also experienced periods of incapacitation due to his duodenal ulcer. Specifically, the Veteran reported four or more periods of incapacitation a year, with each period averaging ten or more days. The Veteran experienced daily gnawing and burning pain after eating, which was not relieved by medication. He reported a history of nausea, melena, and diarrhea. The VA physician examined the Veteran and reviewed the claims file, including the various blood tests contained therein. The examiner diagnosed the Veteran with peptic ulcer disease, helicobacter pylori (H. pylori), status-post gastric polypectomy, and duodenal ulcer. These disabilities had a mild effect on his chores, shopping, recreation, and traveling. They had no effect on his exercise, sports, feeding, bathing, dressing, toileting, and grooming. In a July 2011 addendum, the April 2011 VA examiner determined that the Veteran is on a "high-fiber, low-fat diet" per his Gastroenterologist (GI). The VA examiner then concluded that the Veteran's duodenal ulcer with gastritis has not caused any weight loss or anemia. The VA examiner observed that the Veteran does not have a diagnosis of anemia on his VA problem list. The VA examiner noted that the claims file contains evidence of anemia dated in August 2010 (as shown by a blood test). However, the VA examiner determined that the Veteran's history of rectal carcinoma with rectal bleeding "most likely" contributes to his low HBD and HCT, as shown in his blood tests. The VA examiner also observed that the Veteran had lost 6.5 pounds in a little over a year, which the examiner determined does not represent significant weight loss. The VA examiner stated that the Veteran's weight and Body Mass Index (BMI) were normal at the April 2011 examination. Applying the above criterion to the evidence of record, the Board finds that the Veteran is entitled to a 40 percent rating under DC 7305. Specifically, his duodenal ulcer with gastritis has been manifested by recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. As previously mentioned, at his April 2011 VA examination, the Veteran reported that he experiences 4 or more periods of incapacitation a year, with each period averaging ten or more days. Throughout the appeal, the Veteran's service-connected duodenal ulcer with gastritis has caused continuous manifestations of epigastric pain, epigastric burning, GERD, and abdominal pain. The Board finds that the Veteran is competent and credible to attest to these symptoms. His complaints have been documented to medical providers. The medical evidence of record supports the Veteran's contentions. As such, a higher 40 percent rating is justified for the Veteran's duodenal ulcer with gastritis under DC 7305. 38 C.F.R. § 4.114. However, a rating higher than 40 percent is not warranted for the Veteran's duodenal ulcer with gastritis. Specifically, under DCs 7304 and 7305, the Veteran's duodenal ulcer has not been manifested by severe symptoms, with 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. Under DC 7346, the Veteran is not entitled to a higher rating since he has not displayed symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. As previously mentioned, in a July 2011 addendum, the VA examiner determined that the Veteran's duodenal ulcer with gastritis has not caused any weight loss or anemia. The evidence of record does not establish that the Veteran has a severe impairment of health. As previously mentioned, the April 2011 VA examiner determined that the duodenal ulcer had a mild effect, at most, on his daily living activities. Additionally, the Veteran is also not entitled to a higher rating under DC 7307, since the Veteran does not have severe hemorrhages, or large ulcerated or eroded areas. These symptoms were not documented in the examination reports, and have not been documented in the remaining medical evidence. Therefore, a rating higher than 40 percent is not warranted for the Veteran's duodenal ulcer with gastritis. 38 C.F.R. § 4.114. Here, the Board is cognizant of, and has carefully considered, the Veteran's subjective reports. However, none of the criteria required for a rating higher than 40 percent were diagnosed or objectively noted. The treatment notes of record similarly do not provide objective support for a higher rating. Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by a 40 percent evaluation. In sum, the weight of the credible evidence demonstrates that the Veteran's duodenal ulcer with gastritis warrants a rating no higher than 40 percent. Notice and Assistance Under applicable law, 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2003, December 2004, March 2007, and April 2011 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim. The letters also gave the Veteran an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The April 2011 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The December 2004, March 2007, and April 2011 letters were not provided before the initial RO adjudication of his claim. However, after he was provided the letters he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided these notices, the Veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further VCAA notification. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs, personnel records, and post-service VA and private treatment records have been obtained. In its April 2011 Remand, the Board attempted to obtain additional private treatment records from Dr. T. However, VA was unable to obtain these records because the Veteran did not respond to the April 2011 letter requesting the necessary authorizations. The Veteran has also been afforded VA examinations. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorder currently on appeal. The Board does not need to make an attempt to obtain these records. Thus, the Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to the Veteran with the development of evidence is required. ORDER Entitlement to an increased disability rating of 40 percent, but no higher, for the Veteran's duodenal ulcer with gastritis is granted, subject to the statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs