Citation Nr: 1328238	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  10-14 069	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an increased rating for chronic peptic ulcer disease, currently rated 10 percent disabling.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Johnson, Counsel



INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from May 1951 to July 1953.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In March 2013, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 


FINDING OF FACT

The Veteran's peptic ulcer disease is manifested by continuous moderate symptoms of impairment such as vomiting, nausea, and pain only partially relieved by standard therapy; but without impairment of health due to weight loss, anemia, recurrent hematemesis or melena; or incapacitating episodes averaging 10 days or more in duration at least four or more times a year.  


CONCLUSION OF LAW

The criteria for a 20 percent rating, and no more, for chronic peptic ulcer disease have been met.  38 U.S.C.A.  §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.114, Diagnostic Code 7305 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  A letter sent in June 2008 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (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.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records and VA and private medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  VA examinations were conducted in July 2008 and May 2012.  Although the Veteran has argued that these examinations were inadequate for rating purposes, and asserts that the May 2012 examiner did not accurately record the frequency of his symptoms, the record does not reflect such.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Both examinations contain findings sufficient to rate his disability.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486.  

Analysis

The Veteran asserts that his service-connected peptic ulcer disease is more severe than currently rated.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  

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 veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

The criteria for rating diseases of the digestive system are set forth in 38 C.F.R. § 4.110-4.114, Diagnostic Codes 7200-7354.  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.  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.  38 C.F.R. § 4.113.

The Veteran's chronic peptic ulcer disease is rated as 10 percent disabling under 38 C.F.R. § 4.114, DC 7305 (for rating duodenal ulcer).

Under DC 7305 a mild degree of impairment with recurring symptoms once or twice yearly warrants a 10 percent rating.

A moderate degree of impairment, manifested by recurrent episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations, warrants a 20 percent rating.  

A moderately degree of impairment, manifested by symptoms 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, warrants a 40 percent rating.  

A severe degree of impairment, manifested by 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, warrants a maximum 60 percent rating.  

The Veteran underwent a VA examination in July 2007.  He reported that his peptic ulcer disease caused him to feel nauseated almost 50 percent of the time.  The nausea reportedly lasts from 5 to 6 days and then spontaneously resolves.  He stated that he was using Omeprazole and Metoclopramide for treatment; these medications provided moderate control of his symptoms.  The Veteran did not report any current symptoms of emesis, vomiting, weight loss or anemia.  The only affect on his activities of daily living was that he was nauseated all of the time.  He reported that he retired from employment in 1989 primarily due to a nervous condition.  On physical examination, the Veteran's weight was noted to be stable at 170-175 pounds (lbs).  A complete blood count (CBC) test revealed a red count that was slightly low at 4.43.  Hematocrit was slightly low at 37.5.  The examiner's diagnosis was history of peptic ulcer disease, chronic.  

VA medical records dated from June 2007 to October 2009 show ongoing treatment for peptic ulcer disease, including use of Zantac and Omeprazole.  Of note, a May 2008 treatment note indicated that Veteran continued to have spells of nausea.  A history of the Veteran's vital signs revealed a weight of 176 lbs in May 2007; 174 lbs in October 2007; and 176 lbs in May 2008.  The records also indicate that the Veteran weighed 177.8 lbs in December 2008 (compared with 172.7 lbs in April 2006).  

A private medical record dated in November 2008 shows the Veteran received emergent treatment for complaints of severe retrosternal heartburn with epigastric pain and indigestion.  An esophagogastroduodenoscopy (EGD) revealed a gastroesophageal nodule measuring about 1.2 to 1.5 centimeters, antral erosions, and superficial ulcers on the upper part of the stomach.  The examining clinician prescribed Zantac and Protonix.

In the Veteran's January 2009 Notice of Disagreement, he reported that his disability severely affects his daily life, he experiences ongoing discomfort, and is chronically ill despite taking his prescribed medications and adhering to his diet.  He indicated that he primarily self-treats his disability because he is told to watch his diet and continue his medications.  He stated that he had numerous emergency room visits in the past and had submitted evidence of such in 2002.

On the Veteran's Form 9, submitted in March 2010, he reported that he had "daily episodes" from his ulcers that cause severe nausea with vomiting.

The Veteran underwent a VA examination in May 2012.  The examination report indicates that the Veteran's peptic ulcer disease required him to take medication continuously.  His symptoms from the peptic ulcer disease included abdominal pain, nausea, and vomiting.  The pain was relieved by standard ulcer therapy.  The severity of the nausea and vomiting was transient and the frequency of these episodes was recorded as 4 times or more per year, with an average duration of less than 1 day.  These symptoms were all characterized as recurrent, but non-severe.  Hematemesis and melena were not reported.  The examination report also indicates that the Veteran did not experience any incapacitating episodes.  The examiner indicated that there were no other pertinent physical findings, signs, or symptoms related to the peptic ulcer disease.  The disability did not affect the Veteran's ability to work.  An upper gastrointestinal series was negative for ulcers. 

In a June 2012 statement, the Veteran reported that he had problems every day of his life.  He stated that he did not tell the May 2012 examiner that his peptic ulcer episodes last less than a day.  Rather, he asserted that his peptic ulcer episodes sometimes last 2 to 3 weeks, depending on how quickly his medication works.  With respect to the examiner's findings about whether he had any incapacitating episodes, the Veteran asserted that, since he is retired, he stays home when he is ill and rests until his medication (Carafate) provides relief.  He did not, however, indicate the frequency of these incapacitating episodes.

In light of the Veteran's subjective statements and the objective clinical findings, the Veteran's symptoms more nearly approximate the criteria for a 20 percent rating under DC 7305 for moderate symptoms attributed to his peptic ulcer throughout the appeal.  The evidence demonstrates the ulcer manifests with daily (continuously recurring) symptoms that include nausea, vomiting, and abdominal pain only partially relieved by standard therapy.  Thus, a 20 percent evaluation is warranted.

The Board has considered the Veteran's assertion that the May 2012 VA examiner failed to conduct an adequate examination because he did not accurately report the duration of Veteran's symptoms.  To the extent that the Veteran asserts that the May 2012 examiner did not accurately record the frequency and/or duration of his symptoms, the Veteran provided this information in a June 2012 statement, and in previous statements submitted in January 2009 and March 2010.  The Veteran's description of his disability in his personal statements provides the Board with sufficient information to adjudicate the claim.  The Veteran is considered competent to report on the nature and severity of his symptomatology, and he appears to be credible in this regard as well.  

However, even considering the Veteran's competent and credible lay statements about the nature and severity of his peptic ulcer disease, the cumulative evidence is not reflective of moderately severe or severe impairment.  

A higher rating of 40 percent or more, for moderately severe or severe impairment, is not warranted because the evidence fails to establish the presence of any moderately severe or severe symptoms.  The Veteran has competently and credibly reported that he experiences incapacitating episodes, but he has not asserted that such episodes (as opposed to his regular non-incapacitating peptic ulcer disease episodes) average 10 days or more in duration at least four or more times a year.  Further, the Veteran has not reported, nor does the evidence show, any findings of recurrent hematemesis or melena, anemia, or weight loss productive of definite impairment of health.  

The Board has considered rating the Veteran's disability under a different diagnostic code, but finds none that may be assigned on the facts of record or which would avail him of a higher disability rating.  See Butts v. Brown, 5 Vet. App. at 538; see also Pernorio v. Derwinski, 2 Vet. App. at 629.  The Veteran is diagnosed with a duodenal ulcer and thus DC 7305 is the most appropriate code.  38 C.F.R. § 4.114.  

Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however, the preponderance of the evidence is against a rating in excess of 20 percent for any portion of the time period under consideration.  

The evidence shows that the Veteran's service-connected peptic ulcer disease results in periodic vomiting and nausea, and abdominal pain only partially relieved by standard therapy; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms.  The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected peptic ulcer disease is adequate, and referral for extra-schedular consideration is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). 

The Board also considered whether a claim of total disability based on individual unemployability was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).  The evidence reflects that the Veteran is retired.  He has not alleged, nor does the evidence reflect, that he discontinued employment due to his service-connected peptic ulcer disease.  Thus, Rice is not applicable.  

ORDER

An increased rating of 20 percent, and no more, for chronic peptic ulcer disease, is granted.





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs