Citation Nr: 1303548
Decision Date: 02/01/13	Archive Date: 04/10/13

DOCKET NO. 07-01 384   	)       DATE FEB 01 2013

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi

THE ISSUE

Entitlement to a rating in excess of 20 percent for recurrent duodenal ulcer with secondary anemia, psychophysiological gastrointestinal reaction.

REPRESENTATION 

Veteran represented by:     Disabled American Veterans

WITNESS AT HEARING ON APPEAL 

The Veteran

ATTORNEY FOR THE BOARD

C. Lawson, Counsel

INTRODUCTION

The Veteran had active military service from July 1976 to January 1979.

This appeal comes to the Board of Veterans' Appeals (Board) from a January 2006 rating decision. A VARO hearing was held in August 2007, and a Board hearing was held by the undersigned acting Veterans Law Judge in September 2010.

In March 2011, the Board remanded the Veteran's claim. The directed development has been completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As the Board noted in its March 2011 decision, the Veteran specifically filed a claim for TDIU in January 2007, to include consideration of whether the issue on appeal here, his duodenal ulcer, alone or in combination with all his service connected disabilities rendered him unemployable. The claim was denied in March 2009 and the Veteran did not appeal. While the Veteran's failure to appeal the earlier rating determination does not bar him from once again seeking TDIU in conjunction with his increased-rating claim, the fact remains that the Veteran has not submitted any additional information or allegation to suggest that he is unemployable as a result of his service connected duodenal ulcer disability since the TDIU was denied. As such, a claim for TDIU is not raised as part of this appeal.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.

In September 2005, the Veteran submitted a statement withdrawing his appeal with regard to his duodenal ulcer, shortly after the issuance of a statement of the case.

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This had the effect of closing that appeal. See 38 C.F.R. § 20.204. Later in September 2005, the Veteran submitted a statement indicating that his military records showed that he had a psychophysiologic disorder related to his duodenal ulcer. A January 2006 rating decision categorized the issue as "service connection for psychophysiologic disorder", but then confusingly stated that the rating was "continued", implying that the issue had already been service connected. Yet, the only Diagnostic Code listed on the rating sheet was 7305; a separate rating under 38 C.F.R. § 4.130 was not assigned. The Veteran disagreed with the rating decision in March 2006, but gave little explanation as to which aspects he disagreed with.

In November 2006, a statement of the case was issued which reclassified the issue as evaluation of duodenal ulcer, recurrent, with secondary iron deficiency anemia, psychophysiologic gastrointestinal reaction, rated at 20 percent. However, once again, the only rating criteria that was then considered was DC 7305 for duodenal ulcers. The Veteran submitted a statement that was received in January 2006 in which he clarified that he was not applying for PTSD, but that he had been diagnosed in service with an adjustment disorder with a poor reaction to stress and he felt that he should be rated at 100 percent disability for that condition. However, in a substantive appeal received in January 2007, the Veteran argued that his duodenal ulcer should be rated at 60 percent, suggesting therefore that this issue was resurrected. Yet, his appeal did not in any way address a desire to pursue a separate psychiatric rating.

In a March 2009 rating decision, the Veteran was assigned a temporary 100 percent rating from September 2005 to November 2005 on account of having been hospitalized. Here, it looked like the Veteran was hospitalized based on psychiatric impairment, but the rating he was returned to in November 2005 was based solely on the rating criteria for an ulcer. A supplemental statement of the case was issued in August 2010, which appeared to conclude that the Veteran's currently diagnosed psychiatric illness was not actually part of his duodenal ulcer. In August 2010, the Veteran's representative submitted a statement in support of the Veteran's claim but failed to address any psychiatric condition, and at the Veteran's Board hearing in September 2010, no discussion was raised regarding any psychiatric impairment.

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Given this procedural history, it is clear that the Veteran believes that service connection should be in effect for a psychiatric disorder. However, as described, the issue has been generally skirted around in the various rating decisions and statements or supplemental statements of the case. That is the actual criteria for a acquired psychiatric disability have not been discussed. Additionally, a number of medical opinions have been obtained attempting to discern whether the Veteran's diagnosed psychiatric disability is in fact related to his military service. As such, the Board concludes that a psychiatric claim has not been fully adjudicated, and therefore, the Board will refer the issue of entitlement to service connection for an acquired psychiatric disorder for appropriate action (if the RO concludes that service connection is already in effect for a psychiatric disability as part and parcel of the Veteran's duodenal ulcer rating, consideration should be given to whether a separate rating is warranted under 38 C.F.R. § 4.130, or whether the psychiatric component is the predominant symptom and warrants a rating in excess of 20 percent).

FINDINGS OF FACT

1. The Veteran has not had either anemia and/or weight loss that has been productive of definite impairment of health for any distinct period during the course of his appeal as a result of his gastrointestinal disorder.

2. The Veteran's psychophysiological gastrointestinal disorder has not been shown to be productive of pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena.

CONCLUSION OF LAW

Criteria for a rating in excess of 20 percent for a jaw disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1,4.2,4.7, 4.114, Diagnostic Code (DC) 7305 (2012).

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REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is seeking a rating in excess of 20 percent for a recurrent duodenal ulcer with secondary anemia, psychophysiological gastrointestinal reaction. This disability is rated under 38 C.F.R. § 4.114, Diagnostic Code 7305.

Under this Diagnostic Code, a 20 percent rating is assigned for a moderate duodenal ulcer with either 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 assigned for a moderately severe duodenal ulcer which is less than

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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; and a 60 percent rating is assigned for a severe duodenal ulcer which causes pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss that is productive of definite impairment of health.

It is noted that the Veteran specifically withdrew his ulcer claim in a September 2005 statement. He subsequently refiled his claim, but he was granted a temporary total rating based on hospitalized from September 2005 to November 2005. His claim for a rating in excess of 20 percent for a duodenal ulcer will therefore be considered from the time his total rating ended.

In September 2010, the Veteran testified at a hearing before the Board that he had experienced bouts of anemia, and he asserted that he continued to have problems with a bleeding ulcer. He added that he was taking iron supplements because of an iron deficiency.

VA treatment records show that in September 2005, no weight or appetite changes were noted and the Veteran denied any blood in his stool.

During the course of his appeal, the Veteran has been provided with several VA examinations.

At a VA examination in November 2005, the Veteran reported that he had in the past been hospitalized on a number of occasions for treatment of gastrointestinal bleeding, but none since 2001. The Veteran was taking omeprazole for his ulcer. The examiner noted that the Veteran was in a good state of nutrition.

At an RO hearing in 2007, the Veteran asserted that his weight fluctuated all the time. He stated that he had flare-ups in his stomach approximately once per week.

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In August 2007, an EGD showed acute and chronic duodenal ulcer disease. There was widespread superficial ulceration, but no large ulcers. There was no bleeding and the postbulbar area was normal.

In October 2007, the Veteran underwent a VA examination at which he was found to be a difficult historian. He reported daily symptoms of substernal burning indigestion which radiated into his throat and was associated with nausea and vomiting. The Veteran reported some daily fatigue and stated that he did not have much of an appetite, but that he was nevertheless gaining weight and was up to 213 pounds. The claims file review indicated previous gastrointestinal bleeds and treatment for H pylori duodenal disease.

At a VA examination in June 2009, it was noted that there was no evidence of any anemia seen, and no active ulcer disease was seen. The examiner observed that the Veteran had been incapacitated in the past by his duodenal disease, but found that the duodenal disease was controlled at the time of the examination. In fact, the examiner added that the condition did not affect his occupational functioning or activities of daily living at that time.

The Veteran's duodenal ulcer was evaluated again at a VA examination in February 2010. The Veteran complained of daily fatigue, but there was no documented weight loss. The examiner noted that the Veteran did not experience any incapacitating symptoms as a result of his duodenal ulcer. However, noting that the examination report did not address whether the Veteran was anemic. The Board concluded that an additional examination was necessary to appropriately rate the Veteran's claim. At his hearing the Veteran asserted that he had been found to have anemia every time blood work was conducted, which he believes was a result of his service connected gastrointestinal condition. However, the Board concluded that from a review of the medical evidence it was unclear whether this was simply a historical finding (as anemia is listed in the description of his service connected disability), or whether the Veteran has actually had chronic anemia during the course of his appeal. Moreover, under the schedular rating criteria, the mere presence of anemia alone does not warrant a rating in excess of 20 percent. Rather the anemia must cause impairment of health.

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In April 2011, the Veteran underwent a VA examination. The examiner noted that he had been treated for iron deficiency anemia in the past, but his last blood transfusion occurred in the 1990s. That is, years before the current appeal. The examiner noted that an upper GI study in 2009 showed active ulcers in the duodenum, but the stomach and esophagus appeared normal. A GI study in 2010 showed evidence of gastritis. The Veteran reported slight bleeding with bowel movements, but no tarry stools. He occasionally experienced episodes of nausea and vomiting, but his last one had been approximately three months earlier. His appetite was good, but it fluctuated with his depression. He had lost 15 pounds in the previous six weeks, but this was declining from 248 pounds which was his maximum weight that year to 235 pounds. The examiner felt that the weight fluctuation was related to the Veteran's depression. The examiner found that while the Veteran was unemployed, he was still able to engage in activities of daily living without restriction. The Veteran was noted to experience fatigue, but the examiner found that such impairment was likely a result of psychiatric drugs, and the examiner did not feel that any chronic fatigue was actually related to anemia or to the Veteran's peptic ulcer disease. The examiner acknowledged that the Veteran had been observed to have mild anemia since 2005 as a result of an iron deficiency, but found that the anemia was mild and should not result in significant fatigue. Iron studies were normal, and the Veteran did not report any significant pain in his abdomen at the examination.

As noted, an increased, 40 percent, rating requires the presence of a moderately severe duodenal ulcer which causes 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.

Here, the most recent VA examiner acknowledged that the Veteran did have mild anemia, but found that it did not actually cause impairment of health. Moreover, to the extent that the Veteran has experienced some fluctuation of weight, this was attributed to depression and not to his duodenal ulcer.

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The claims file has also been reviewed, but it does not appear that the Veteran's duodenal ulcer has caused incapacitating episodes averaging 10 days or more in duration at least four or more times a year at any point during the course of his appeal, and the Veteran does not appear to have argued to the contrary.

Treatment records have been reviewed but do not describe symptomatology which differs from what was found and analyzed by the multiple VA examinations.

A 60 percent rating is similarly not warranted as it is not shown that the Veteran's duodenal ulcer is severe. There is no indication that the duodenal ulcer causes pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss that is productive of definite impairment of health. As noted, the most recent examiner found that definite impairment of health had not been shown.

In reaching these conclusions, the Board has considered the Veteran's statements, including his testimony at Board and RO hearings. To this end, the Veteran, as a lay person, is competent to report what comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Veteran could identify periods of vomiting or weight loss. The Veteran can also relate that he had been diagnosed with anemia. However, he lacks the medical training and expertise to provide a complex medical opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, while the Veteran can speak to the presence of certain symptoms, he is not competent to conclude what causes the symptoms, such as vomiting or anemia, or more importantly to evaluate the impact of certain symptoms on his overall health. To this end, the Board endeavored to obtain medical opinions to evaluate the impact of the Veteran's reported symptomatology, but as described above, the statements by the medical professionals have not supported a rating in excess of 20 percent for the Veteran's duodenal ulcer at any time during the course of his appeal.

Thus, the criteria for a schedular rating in excess of 20 percent for the Veteran's duodenal ulcer have not been met.

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The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules 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 will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id.

However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's duodenal ulcer that would render the schedular criteria inadequate. The schedular rating criteria contemplate "moderate manifestations" and therefore include a general consideration of all the symptoms associated with .the Veteran's duodenal ulcer. Moreover, to the extent he complained of anemia and weight loss at his hearing, these symptoms have also been contemplated by the schedular rating criteria. Accordingly, referral for consideration of an extraschedular rating is not warranted.

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While the Veteran has related psychiatric impairment to his duodenal ulcer, this issue has been referred for adjudication; and, therefore, psychiatric symptoms will be considered in a separate rating action and will not be discussed in conjunction with either the schedular or extraschedular rating considerations.

II. Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) {Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, it is unclear that the Veteran was ever sent a specific letter during the course of his appeal with regard to an increased rating for his duodenal ulcer. Notice was provided by a letter dated in April 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. However, this letter was provided prior to the Veteran withdrawing his claim for a duodenal ulcer. Nevertheless, during the entirety of his appeal, the Veteran has been represented and there is no suggestion that he has lacked any information as to what is necessary to obtain a higher rating.

Moreover, even if it were concluded that notice was insufficient, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696

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(2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Veteran's claim has been underway for a number of years, during which time he has been represented, he has been provided numerous statements of the case and supplemental statements of the case which include the Diagnostic Code used to rate his disability on appeal.

Additionally, the Veteran testified at a hearing before the Board in September 2010. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ fully explained the issues on appeal and explained the rating criteria used to evaluate the Veteran's disability, including asking specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The Veteran's treatment history was discussed and the Veteran was even scheduled for a VA examination based on his testimony. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2).

As to VA's duty to assist, 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). VA and private treatment records have been obtained, and the Veteran has not identified any records which have not been sought. Additionally, the Veteran testified at hearings before both the RO and the Board.

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA

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examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Moreover, neither the Veteran, nor his representative, has argued that the examination was inadequate.

As described VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

ORDER

A rating in excess of 20 percent for recurrent duodenal ulcer with secondary anemia, psychophysiological gastrointestinal reaction is denied.

MATTHEW W. BLACKWELDER 
Acting Veterans Law Judge, Board of Veterans' Appeals

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