Citation Nr: 1327299 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-05 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the Veteran's service-connected duodenal ulcer for the period prior to December 3, 2012, and in excess of 20 percent for the period from December 3, 2012. 2. Entitlement to service connection for a right foot disorder, to include cellulitis of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to February 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). While on appeal, in April 2013, the Appeals Management Center (AMC) increased the Veteran's disability rating for his service-connected duodenal ulcer, to 20 percent disabling, effective December 3, 2012. Hence, the Board has characterized the Veteran's claim for an increased rating as specified on the title page above. The Veteran presented testimony at a Board hearing in January 2011. A transcript of the hearing is associated with the Veteran's claims folder. The Board notes that pertinent VA outpatient treatment records are located in Virtual VA. Instead of paper, Virtual VA is a highly secured electronic repository is used to store and review every document involved in the claims process. Any future consideration of this appellant's case should take into consideration the existence of this electronic record. These matters were remanded in May 2011 and December 2012 for further development and are now ready for adjudication. FINDINGS OF FACT 1. For the period from August 31, 2004 to February 8, 2005, the Veteran's duodenal ulcer was productive of continuous moderate manifestations, including nausea and vomiting twice daily; however, the duodenal ulcer was not productive of moderately severe manifestations resulting in anemia, weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration, at least four or more times per year. 2. For the period from February 9, 2005 to December 22, 2010, the Veteran's duodenal ulcer was productive of mild symptoms; the Veteran consistently reported that he had no gastrointestinal complaints and that daily medication that kept the duodenal ulcer well-controlled. 3. For the period from December 23, 2010 to December 2, 2012, the Veteran's duodenal ulcer was productive of continuous moderate manifestations, including vomiting three times per week, heartburn, gas pain, and painful empty stomach; however, the duodenal ulcer was not productive of moderately severe manifestations resulting in anemia, weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration, at least four or more times per year. 4. For the period from December 3, 2012, the Veteran's duodenal ulcer was not productive of moderately severe manifestations resulting in anemia, weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration, at least four or more times per year. 5. The preponderance of the evidence is against a finding that the Veteran currently suffers from a right foot disorder as a result of active service, including a diagnosis of cellulitis in active duty service. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for a duodenal ulcer for the period from August 31, 2004 to February 8, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305 (2012). 2. The criteria for a rating in excess of 10 percent for a duodenal ulcer for the period from February 9, 2005 to December 22, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305 (2012). 3. The criteria for a rating of 20 percent, but no higher, for a duodenal ulcer for the period from December 23, 2010 to December 2, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305 (2012). 4. The criteria for a rating in excess of 20 percent for a duodenal ulcer for the period from December 3, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Diagnostic Code (DC) 7305 (2012). 5. A right foot disorder was not incurred in active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the issues of entitlement to an increased rating or service connection, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. A letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in January 2005, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, the Veteran was provided with a letter in March 2011 which provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Next, the Board notes that it has assigned staged ratings herein, resulting in an earlier stage with a higher rating than a subsequent stage. Notably, the U.S. Court of Appeals for Veterans Claims has held that the procedural protections of 38 C.F.R. § 3.105(e) (notice regarding rating reductions) do not apply where the Board retroactively assigns staged disability ratings, such as the case here. O'Connell v. Nicholson, 21 Vet. App. 89 (2007) (requiring the Board to comply with 38 C.F.R. § 3.105(e) would "compel VA to first assign the higher disability rating and then halt adjudication in order to issue a proposed reduction and provide the veteran with 60 days in which to submit additional evidence"); see also Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (2009) (indicating that a "staged rating" is a rating that looks backwards and retroactively assigns specific ratings to discrete periods); Tatum v. Shinseki, 24 Vet. App. 139, 144 (indicating that § 3.105(e) requires notice only before there is a reduction in compensation). Based on the foregoing, no notice is required regarding the staged ratings decided herein. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In compliance with its duty to assist, the RO associated the Veteran's service treatment records, private treatment records, and VA examinations in February 2005 (duodenal ulcer), May 2008 (duodenal ulcer), June 2011 (both claims), and addendum opinions were obtained in December 2012. Regarding the February 2005 VA-contracted examination, the Board notes that there were no medical records available for review in connection with the examination. However, such is not a fatal flaw. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board finds the VA examiner conducted a thorough examination and considered the Veteran's complaints regarding his symptomatology. Similarly, the May 2008 VA-contracted examiner did not indicate whether treatment records were reviewed; however, the examiner referenced the Veteran's medical history and conducted a thorough interview of the Veteran regarding his symptoms and evaluated whether the Veteran had anemia or malnutrition. As such, the evidence necessary to apply the pertinent rating criteria was discussed and the report is adequate. Regarding the June 2011 VA examination reports, the Board found both reports to be incomplete. Regarding the June 2011 report for the duodenal ulcer, the Board finds the examination report to be inadequate with respect to the symptomatology allegedly reported by the Veteran as it was in stark contrast to the hearing testimony received a few months prior to the examination. Notably, the Board finds the objective laboratory evidence obtained in June 2011 to be adequate. The Board remanded the duodenal ulcer claim for another VA examination. Such examination occurred in December 2012 and is adequate for rating purposes. The examiner conducted a thorough interview and examination with the Veteran. The symptomatology reported was consistent with other reported symptomatology. Based on the examination, the AMC increased the Veteran's disability rating to 20 percent. Based on the foregoing, the Board finds that the December 2012 duodenal ulcer VA examination complied with the November 2012 Remand directives. Regarding the June 2011 VA examination report for the right foot, the Board found it incomplete as the examiner did not provide a nexus opinion for the diagnosed osteoarthritis of the right foot. The Board subsequently remanded the claim for an addendum opinion from the June 2011 examiner, which was received in December 2012. The December 2012 right foot examiners reviewed the Veteran's c-file and offered the outstanding opinion requested. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant facts. As such, the Board finds that the December 2012 addendum opinion complied with the November 2012 Remand directives. Additionally, the Veteran was afforded the opportunity to testify before the Board in January 2011. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veterans Law Judge who chairs 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 undersigned essentially elicited testimony necessary to determine the nature and severity of the Veteran's disorders. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. After a careful review of the file, 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). 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 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). II. Analysis A. Increased Ratings 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 Diagnostic Codes (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 October 1985 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 August 31, 2003, 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) (2012). VA regulations provide that 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 or pain, anemia and disturbances in nutrition. 38 C.F.R. § 4.113. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Id. 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 evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Service connection is currently in effect for a duodenal ulcer, rated at 10 percent under DC 7305 for the period prior to December 3, 2012 and rated at 20 percent for the period from December 3, 2012. 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 rating schedule provides guidance in the evaluation of gastrointestinal disorders. In particular, 38 C.F.R. § 4.112 highlights the importance of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders. 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, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). 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. Id. Stated another way, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. VA regulations recognize that diseases of the digestive system, while differing in the site of pathology, produce a common disability picture in terms of symptomatology. 38 C.F.R. § 4.113. The Board also is also cognizant of the holding in Mittleider v. West, 11 Vet. App. 181 (1998), which held that where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. In this case, the Veteran has been diagnosed with a duodenal ulcer as well as GERD. In light of Mittleider, the Board will attribute all symptoms to his service-connected duodenal ulcer. Applying the criteria to the facts of this case, the Board finds that staged ratings are appropriate as discussed below. i. Period from August 31, 2004 to February 8, 2005 The Veteran filed a claim for an increased rating on August 31, 2004. He reported that his symptoms had worsened. He underwent a VA examination as a result of the claim, in February 2005. At that time, he reported nausea and vomiting whenever he feels hungry - usually twice a day. He denied having blood in his stool. On physical examination, the VA examiner noted evidence of mild tenderness in the epigastric area. The VA examiner also noted that there was no evidence of rebound, guarding or masses. The VA examiner noted that the Veteran's bowel sounds were normoactive. The VA examiner noted that there was no evidence of ascites or superficial distention of the veins. The examiner also noted that there was no evidence of tenderness or hepatosplenomegaly. Finally, the VA examiner concluded that the GI condition did not appear to cause significant anemia or malnutrition. VA outpatient treatment records and private treatment records dated during the period beginning a year prior to the date of the Veteran's claim for increase do not indicate an increase in symptomatology. The Veteran's August 2004 claim is the first report of an increase in symptomatology. The February 2005 VA examination report confirms the severity of the increase in symptomatology. For example, previously, at an October 2001 VA-contracted examination, the Veteran denied nausea and vomiting but at the February 2005 VA examination, he reported experiencing nausea and vomiting twice per day. Additionally, a VA outpatient treatment record dated February 9, 2005 confirms that the Veteran switched medications because the former medication was not working properly. As the Veteran's physician changed his medication in response to his complaints, the Board finds the Veteran's August 2004 statements regarding his symptomatology to be credible. Moreover, he is competent to report his observations of nausea and vomiting as they come to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the VA examination report confirmed that the Veteran reported worsening symptoms, including nausea and vomiting twice per day, and the Veteran's physician changed his medication based on similar reports, the Board finds that an increased rating to 20 percent is warranted for continuous moderate symptomatology. Having found that a rating of 20 percent for the duodenal ulcer is warranted, the Board has considered whether a rating in excess of 20 percent is warranted. However, the Board finds that it is not. Specifically, the next-higher 40 percent disability rating is warranted for symptoms less than severe 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. In this case, the evidence does not demonstrate anemia or weight loss, or recurrent incapacitating episodes. For example, the Veteran denied weight loss when examined in February 2005 and it was remarked that he looked well nourished. Therefore, a rating in excess of 20 percent is not warranted. ii. Period from February 9, 2005 to December 22, 2010 As discussed above, a VA outpatient treatment record dated February 9, 2005 indicated that the Veteran's medication had been changed because he complained that the prior medication was not working properly. Following the change in medication, the VA outpatient treatment records for the period from February 9, 2005 to December 22, 2010 consistently note that the Veteran reported no gastrointestinal complaints. Additionally, his private treatment records note that he was taking daily medication for his duodenal ulcer during this period, but they do not document any complaints of nausea or vomiting, or other ulcer symptomatology. Additionally, during this period, the Veteran underwent a VA examination in May 2008. At that time, he reported that he had not noted recent bleeding in stool. He also reported that off and on, through the years, he had some abdominal pain that tends to occur before eating. On physical examination, the examiner noted that the Veteran's abdomen was soft and non-distended, with bowel sounds present. The examiner also noted that the Veteran's abdomen was non-tender, and that there was no rebound or guarding. The was found to have no detectable hepatosplenomegaly or ascites, and no masses were detected. It was remarked that clinical signs were negative for anemia and there was no evidence of malnutrition. The Veteran's wife submitted a written statement in support of other issues not currently on appeal in April 2009. She noted her observations that "[The Veteran] has experienced nausea, vomiting, dizziness, headaches, and frequent urination." Although the Veteran's wife is competent to report her observations as they come to her through her senses, the Board finds the statement has little probative value with respect to the increased rating claim as she specifically discussed disorders not currently on appeal but did not indicate that these observations applied to the Veteran's duodenal ulcer claim. Likewise, she did not indicate any particular time frame during+ which she has observed these symptoms. The Board finds the medical treatment evidence to be more probative than the Veteran's spouse's vague statements. In seeking medical treatment, the Veteran repeatedly reported no gastrointestinal complaints and the VA physicians consistently noted that his history of duodenal ulcer was well-controlled with medication. His private treatment records also indicate that he sought treatment for other issues not on appeal but do not contain reports of gastrointestinal complaints. The Board finds that his statements made to physicians for the purpose of seeking medical treatment are more probative than those of his spouse that did not specifically reference the duodenal ulcer or a particular time frame for the symptoms that she observed. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As the Veteran's own reports of symptoms to his treating physicians during this period do not indicate that he had more than mild symptomatology, the Board finds that a rating in excess of 10 percent is not warranted for this period. iii. Period from December 23, 2010 to December 2, 2012 Beginning on December 23, 2010, the Veteran complained to his VA physician that the medication for his duodenal ulcer was not working. This complaint is consistent with the hearing testimony presented in January 2011. During his hearing before the Board in January 2011, the Veteran offered sworn testimony that he regularly vomited three times per week, sometimes before he ate and sometimes after he ate. T. page 9. His wife confirmed her observations of the same. Id. He also reported that his stomach was tender and had lots of gas. T. page 6. He reported heartburn a few times a day, when it is time for him to eat. T. page 7. The Board finds that these symptoms are consistent with the requirements for a moderate disability, including recurring episodes of severe symptoms (nausea and vomiting) two or three times per year averaging 10 days in duration; or continuous moderate manifestations. Having found that a rating of 20 percent is warranted, the Board finds that a rating in excess is not warranted. Specifically, moderately severe symptomatology (less than severe but with anemia and weight loss; or incapacitating episodes averaging 10 days or more in duration at least four times per year) has not been noted during this period. Following a May 2011 Remand, the Veteran underwent a VA examination in June 2011. However, as explained in the VCAA section above, the Board finds the examination report, regarding the Veteran's reported symptomatology, is not an adequate report upon which to base a decision. However, the Board finds that the objective laboratory testing is adequate. Such testing did not reveal any anemia. Additionally, the June 2011 VA examiner noted that there was no evidence of malnutrition or weight loss. Likewise, the remaining VA outpatient treatment records and private treatment records dated during this period do not reveal any anemia, weight loss, or incapacitating episodes. Most of the private notes refer to reflux as a concurrent diagnosis, but focus on other medical conditions. As such, the next-higher 40 percent disability rating is not warranted. iv. Period from December 3, 2012 The Appeals Management Center increased the Veteran's disability rating to 20 percent disabling for the period from December 3, 2012. For the following reasons, a rating in excess of 20 percent for this period is not warranted. The Veteran underwent a VA examination in December 2012. At that time, he reported that he continued to take Acifex to treat his duodenal ulcer. He reported that it works for him for most of the day. He also reported that he has pain in his stomach occasionally when his stomach is too full after eating good food. He reported that he also feels nauseated at times and vomits once in a while. He also reported that his nausea and vomiting do not occur every day. He reported that he feels better after burping. He reported that he tries to avoid raw vegetables in his diet like lettuce and carrots. He also reported that he has infrequent symptoms of epigastric pain, one to two times per day and each episode lasts for five minutes and resolves by itself. He reported that he feels gas, heart burn, and bloating three times a day before or after meals and that symptoms last for "maybe ten or fifteen minutes." He reported abdominal pain occurs at least monthly. He reported that his last hospitalization for the duodenal ulcer was 15 years prior to the December 2012 VA examination. He reported that he has no incapacitating episodes. Regarding weight loss, the Veteran reported that his usual weight was 155 pounds and the VA examiner noted that he weighed 160 pounds at the examination. A September 2012 VA outpatient treatment record for other disorders not currently on appeal, noted that the Veteran reported no gastrointestinal complaints. The same treatment record also noted that the Veteran did not have any significant weight change. Based on the foregoing, the Board finds that the next-higher 40 percent disability rating is not warranted. Specifically, moderately severe symptomatology (less than severe but with anemia and weight loss; or incapacitating episodes averaging 10 days or more in duration at least four times per year) has not been noted during this period. v. Other considerations for all periods on appeal The Board has considered the Veteran's statements that he is entitled to higher ratings; however, disability ratings are governed by specific rating criteria. In this case, during each of the periods on appeal, the clinical evidence of record did not indicate that higher ratings other than those assigned herein, were warranted. Next, the Veteran's duodenal ulcer disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture for his duodenal ulcer disability could not be contemplated adequately by the applicable schedular rating criteria discussed above. In this case, the criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Further, the Veteran has not indicated any symptoms not included in the rating criteria, other than modifying his diet. In the Board's opinion, all aspects of the Veteran's service-connected duodenal ulcer disability are adequately encompassed in the assigned schedular ratings. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's duodenal ulcer disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Nevertheless, the board finds it significant that he reported that his last hospitalization was 15 years prior to the December 2012 VA examination and that he reported that he is retired due to his age. Based on the foregoing, referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. Finally, although the Veteran has submitted evidence of a medical disability and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In fact, he reported that he is retired by eligibility due to age or duration of work. He has not reported that his duodenal ulcer affects his ability to work. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to his service-connected duodenal ulcer has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In reaching all of the above conclusions, the Board has applied the benefit of the doubt where necessary. Notably, the benefit of the doubt doctrine is not applicable when the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service [10 percent and one year, respectively, for arthritis], even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2) (2012). In this regard, the Court of Appeals for Veterans Claims (Court) has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Initially, the Board notes that the Veteran has a current diagnosis of mild osteoarthritis in the right foot. See June 2011 VA examination report and the December 2012 VA addendum opinion. As such, element (1) under Shedden, current disability, is met. See Shedden, supra. Notably, although the Veteran has a current diagnosis of osteoarthritis, it is important to note that such diagnosis was first rendered at the June 2011 VA examination. Service treatment records reveal that he was diagnosed with right foot cellulitis in service but not arthritis. His October 1983 annual examination (following the March and April 1983 cellulitis treatment) noted normal feet. Thus, service connection is not warranted on a presumptive basis for osteoarthritis diagnosed within one year of service. The Board has considered the Veteran's statements of continuity of right foot symptomatology since service. See June 2011 VA examination report indicating that right foot pain began in service, in 1983. He also offered sworn testimony that he "got [the right foot pain] on active duty." T. page 20. He also testified that he has not gone to the doctor for his right foot, since service, but that he limps and does not complain. T. page 19. The Board must consider and weigh both the lay and the medical evidence. The Court has held in this regard that the Board is required to consider "all pertinent medical and lay evidence." 38 U.S.C.A. § 1154(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b) (2012). When considering such lay evidence, the Board should determine, on a case-to-case basis, whether the veteran's particular disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at 1376-77 (cited in Robinson v. Shinseki, 312 Fed.Appx. 336, 339 (Fed.Cir.2009) (remanding the matter for consideration of the appellant's lay evidence, which requires a "two-step analysis" that begins with an evaluation of whether the veteran's disability is the type of injury for which lay evidence is competent)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determinations regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). In the present case, the Board finds the Veteran is competent to report that he has experienced right foot pain since service as these observations have come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board does not find the statements to be credible. In this case, the Board finds significant the multi-year gap between discharge from active duty service (1985) and initial reported symptoms related to a right foot disorder in approximately 2004 (nearly a 20-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Significantly, the Board finds that the Veteran's reported history of continued right foot disorder since active service is inconsistent with the other evidence of record. Indeed, while he stated that his disorder began in service, the October 1983 annual examination noted normal feet. Moreover, the post-service evidence does not reflect treatment related to a right foot disorder prior to the filing of his claim for service connection in 2004. In fact, even at the June 2011 VA examination, he reported that he had not sought treatment for his right foot disorder. The VA examiner also reviewed the treatment records and noted that in all of the treatment records dated from August 1999 to December 2010, he never complained of foot pain to any of his physicians. Moreover, the Veteran filed a claim for service connection for the duodenal ulcer disorder in 1985, shortly after service but made no mention of any right foot symptomatology osteoarthritis was not diagnosed within one year of service discharge and the presumption of service connection under section §3.309 does not apply. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not here been established, either through the competent evidence or through his statements. Turning to the crucial Shedden element (3), nexus, the Board notes that the evidence of record does not support the Veteran's claim. Unfortunately, the Board finds the evidence weighs against the Veteran's claim. In this regard, the Veteran was afforded a VA examination in June 2011. As noted above, the Veteran reported that his foot pain started in 1983, in service, when he hit his foot against something. He reported that he limped secondary to the pain. He reported that he spent one week in the hospital in Balboa secondary to "cellulitis." He reported that after one week, he was on light duty for one month and then was then on shore duty. He reported that after two months, his foot pain resolved and he did not require any medications. He also reported that the pain went away, but then occasionally he would limp "maybe from the pain." He reported to the VA examiner that he has never reported his foot pain to any doctors including currently. He also reported that he requires no pain medication for his foot. He reported that he recently got some "special shoes" from medicare, which helps the pain. He reported that he was given these shoes secondary to his diabetes. The Board notes that he is not service-connected for diabetes and in fact, was previously denied service connection for diabetes in December 2003. On physical examination, the June 2011 VA examiner noted right third and fourth metatarsal and soft tissue pain. The examiner also noted that there was no evidence of painful motion, swelling, instability, weakness or abnormal weight bearing. The examiner also noted that there was no evidence of cellulitis. The examiner obtained X-rays of the Veteran's feet, which revealed an impression of "mild osteoarthritis and enthesopathy." The examiner opined that the Veteran's right foot disorder was less likely as not caused by or a result of active military service. The examiner offered rationale that the Veteran only had mild arthritis consistent with his age on X-ray. The examiner also noted that the Veteran did not have any evidence of cellulitis and that reasoned that an isolated episode of cellulitis many years ago would not result in "this sort of residual pain." The examiner reviewed the service treatment records and noted that the Veteran had cellulitis in March 1983 that resolved in April 1983. The examiner went on to explain that the Veteran's current pain "seems more neuropathic in origin and is more consistent with his self-confirmed history of poorly controlled diabetes for many years." In this regard, the examiner noted that the Veteran reported that he required additional medications for control of his diabetes and that his medications were recently increased. The examiner also noted that in a review of all of the notes from August 1999 to December 2010, the Veteran never complained of foot pain with any of his physicians and that examinations repeatedly documented "no bilateral lower extremity edema." Further, the examiner noted that a note from May 2010 stated that the Veteran walked one mile a day and the examiner reasoned that the note "indicates that any limitation or pain he currently has occurred following that date." In December 2012, the examiner reviewed the Veteran's claims file offered an addendum opinion stating that the Veteran's right foot disorder is less likely as not caused by or a result o active military service. The examiner stated that the disorder is "not related to his 20 years of Navy service, nor is it related to his one episode of cellulitis in 1983." The examiner reiterated the rationale listed in the June 2011 VA examination report. The Board places a high probative value on the VA examiner's opinion as the examiner carefully considered the Veteran's reported history and treatment records. The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed disorder and active duty service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, etiology of right foot osteoarthritis falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Such competent evidence has been provided by the VA rheumatologist who examined the Veteran during the current appeal. Here, the Board attaches greater probative weight to the clinical findings than to the Veteran's statements. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER A rating of 20 percent, but no higher, for a duodenal ulcer for the period from August 31, 2004 to February 8, 2005, is granted subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 10 percent for a duodenal ulcer for the period from February 9, 2005 to December 22, 2010, is denied. A rating of 20 percent, but no higher, for a duodenal ulcer for the period from December 23, 2010 to December 2, 2012, is granted subject to the laws and regulations governing payment of monetary benefits. A rating in excess of 20 percent for a duodenal ulcer for the period from December 3, 2012, is denied. Service connection for right foot disorder is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs