Citation Nr: 1334492 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-14 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased rating, greater than 20 percent for duodenal ulcer, postoperative highly selective vagotomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana which denied the Veteran's claim for an increased rating. The Veteran appealed the denial in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. A review of the documents there-in does not reveal any non-duplicative documents pertinent to the present appeal other than an Informal Hearing Presentation submitted on the Veteran's behalf by his representative. FINDING OF FACT Throughout the entire initial rating period, duodenal ulcer, postoperative highly selective vagotomy has been productive of nausea, vomiting and dizziness after eating, but no weight loss with anemia, and no incapacitating episodes. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for duodenal ulcer, postoperative highly selective vagotomy have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.110, 4.111, 4.112, 4.113, 4.114, Diagnostic Code 7305 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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 and 3.326(a) (2013). 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). VCAA notice should 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). In this case, the RO provided a VCAA notice letter to the Veteran in November 2007 prior to the initial adjudication of the increased rating claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Such notice was provided in the letter sent to the Veteran in November 2007. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of VA treatment as well as records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded VA examinations in November 2007 and November 2011, during which examiners conducted physical examinations of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the opinions expressed, and offered opinions that are consistent with the record. While neither VA examiner was provided with the Veteran's claims file for review, accurate histories were elicited from the Veteran regarding symptoms associated with his service-connected duodenal ulcer. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Increased Rating for Duodenal Ulcer, Postoperative Highly Selective Vagotomy Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The Veteran was previously awarded service connection and assigned an initial disability rating for duodenal ulcer. An appeal of the initial rating is not before the Board; rather the Veteran seeks in increased rating. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. In the February 2008 decision on appeal, the Veteran's claim for an increased rating was denied. The Veteran's duodenal ulcer is currently rated 20 percent disabling, effective November 1, 1988, under 38 C.F.R. § 4.114, Diagnostic Code (DC or Code) 7305 (2013). Under this Code, a moderate duodenal ulcer, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations, is rated 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 10 days or more in duration at least four or more times a year, is rated 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. 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 rating will be assigned under the Code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. Id. There are various postgastrectomy symptoms which may occur following anastomotic operations of the stomach. When present, those occurring during or immediately after eating and known as the "dumping syndrome" are characterized by gastrointestinal complaints and generalized symptoms simulating hypoglycaemia; those occurring from 1 to 3 hours after eating usually present definite manifestations of hypoglycaemia. 38 C.F.R. § 4.111 (2013). Weight loss is a criterion for a disability rating higher than currently assigned for the Veteran's gastrointestinal disorder under Diagnostic Codes 7305 and 7346. 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 over 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. 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. 38 C.F.R. § 4.112 (2013). 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, do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14 (2013). 38 C.F.R. § 4.113 (2013). The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with duodenal ulcer including symptoms such as weight loss, nausea, vomiting, and abdominal pain which are capable of lay observation (as opposed to anemia, for example, which is identified by in part by hemoglobin levels, 60 Fed. Reg. 49225 (Sept. 22, 1995)). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). Additionally, in December 2009 the Veteran's representative argued that symptoms which may otherwise be attributable to the Veteran's ongoing colon cancer are actually related to duodenal ulcer. While the Board recognizes the argument, it is beyond the scope of lay competence to attribute symptoms such as abdominal pain - though lay-observable - to duodenal ulcer rather than cancer as this is a complex medical determination and is beyond the scope of lay competence. Nonetheless, the Board has not discounted any lay evidence regarding the severity of the Veteran's duodenal ulcer merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). After reviewing the entire claims file, the Board finds that the Veteran's service-connected duodenal ulcer has been not more than 20 percent disabling for any period on appeal. The Board finds that duodenal ulcer has been productive of nausea, vomiting and dizziness, but has not included weight loss with anemia or any incapacitating episodes. Records indicate that in September 1988 the Veteran underwent a highly selective vagotomy in treatment of his service-connected duodenal ulcer. In October 2007 the Veteran reported to a VA clinic with a several-month history of pain in the lower abdomen which had become especially worse in the prior two weeks. The Veteran endorsed occasional nausea, no vomiting, diarrhea followed by constipation, bright red blood in his rectum, and occasional back pain. Subsequent investigation and treatment revealed that the Veteran had colon cancer - which is not service-connected and is not the subject of this appeal. In November 2007, the Veteran underwent colon restriction surgery referable to the colon cancer. At that time the Veteran endorsed a non-specific history of lower abdominal pain and constipation. The Veteran had been taking medication for gastroesophageal reflux disease (GERD) and also said the he had undergone "some neck surgery" in the past. On VA examination in December 2007, the Veteran complained of ongoing problems following his November 2007 surgery. The Veteran continued to take medication for acid reflux diseases and complained of chronic nausea with rare emesis of clear liquid. Episodes of abdominal colic, nausea or vomiting, and abdominal distention occurred several times a week, and lasted for one or more hours. The episodes were mild, and included constipation. There was no gnawing or burning pain. The Veteran had post-prandial symptoms following his gastric surgery which included diarrhea and nausea. Episodes of blood in the Veteran's stool were present, due to constant straining. Pain and a tender abdominal scar were attributed to the colon restriction surgery. The Veteran had lost 20 percent of his baseline weight, but this was not described as a "sign of significant weight loss." Anemia was absent. X-ray imaging revealed surgical clips in the upper abdomen. The distal esophagus, gastric fold pattern, duodenal bulb and loop were all normal. There was no evidence of gastroesophageal reflux and the overall impression was of no significant abnormalities. The examiner opined that the Veteran's duodenal ulcer, postoperative highly selective vagotomy had no significant effects on the Veteran's occupation or usual, daily activities. VA oncology treatment report from February 2008 shows that the Veteran complained of nausea, vomiting and diarrhea for three days after chemo therapy. In a subsequent VA chemotherapy treatment note from the same month, the Veteran complained of a "pins and needles feeling in his abdomen" which onset with the beginning of chemotherapy. By mid February 2008, however, the Veteran denied nausea, vomiting, diarrhea, and constipation in an oncology nursing report. The Veteran submitted a November 2009 statement from his treating VA physician in which the physician stated that the Veteran's "had peptic ulcer disease way before his cancer of the colon." The matter of whether the Veteran has an ulcer condition or when such condition onset, however, is not at issue. In December 2009 the Veteran underwent a computed tomography (CT) scan of the abdomen which revealed a small benign adenoma at the upper part of the right adrenal gland. The remainder of the imaging was within normal limits and there were no areas of any other significant abnormality. In an October 2011 statement from the Veteran's representative it was contended that the December 2007 VA examination had become stale as it had been conduced more then three years prior and did not accurately reflect the Veteran's then-current disability picture. In November 2011 the Veteran underwent a VA examination during which he endorsed a history of nausea, vomiting and dizziness 30 to 60 minutes after eating food since the vagotomy surgery for treatment of duodenal ulcer. These episodes were not accompanied by hypoglycaemia. The examiner was asked to identify the Veteran's signs and symptoms which were related to a stomach or duodenum condition. In the Veteran's case, such signs and symptoms were limited to mild nausea four or more times a year - lasting for ten or more days per episode, and recurrent vomiting four or more times a year - lasting for ten or more days per episode. The Veteran had no incapacitating episodes referable to any stomach or duodenum condition. The Veteran had vagotomy with pyloroplasty or gastroenterostomy, which included both symptoms and a confirmed diagnosis of alkaline gastritis or confirmed persisting diarrhea. The Veteran did not have any scars related to duodenal ulcer, though the Board notes that VA treatment records indicate that the Veteran does have an abdominal scar associated with surgical intervention of his colon cancer. The VA examiner concluded that the Veteran's service-connected disability impacted his ability to work, but only insofar has the Veteran had to maintain a diet restricted to bland foods. After reviewing all of the evidence, lay and medical, the Board finds the Veteran's service-connected duodenal ulcer, postoperative highly selective vagotomy to be not more than 20 percent disabling. See 38 C.F.R. § 4.7 (the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise, the lower rating will be assigned). Here, the Veteran's symptoms include nausea, vomiting and dizziness which occur after eating. As stated above duodenal ulcer is current rated as 20 percent disabling and in order to warrant a higher (40 percent) rating, the evidence must show moderately severe duodenal ulcer, with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year, is rated 40 percent disabling. 38 C.F.R. § 4.114. The Board has also considered the applicability of other Codes which may provide a rating higher than 20 percent pursuant to 38 C.F.R. § 4.114. However, a review of the criteria of the criteria in Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, in light of the Veteran's principle service-connected diagnosis of duodenal ulcer, postoperative highly selective vagotomy, indicates that DC 7305 remains the appropriate Code under which to rate the disability at issue. The Board recognizes that on VA examination in December 2007 the Veteran had lost 20 percent of his baseline weight. However, such weight loss was not "significant," see 38 C.F.R. § 4.112, and was not accompanied by anemia. Furthermore, the Veteran has had no incapacitating episodes throughout the period on appeal. Accordingly, the evidence shows that a higher rating is not warranted under DC 7305. In a December 2009 statement, the Veteran's representative recognized that the Veteran's colon cancer symptoms and duodenal ulcer symptoms were similar, but suggested that all abdominal symptomatology was related to service-connected duodenal ulcer and not to the Veteran's colon cancer. The Board has considered this argument, however VA examiners have specifically indicated which symptoms are related to the Veteran's duodenal ulcer. Furthermore, even when considering all episodes abdominal symptomatology, the Veteran's symptoms still would not meet the criteria for the assignment of a higher rating as they have not been productive of weight loss with anemia or incapacitating episodes. Thus, the Veteran's duodenal ulcer, postoperative highly selective vagotomy, has been not more than 20 disabling throughout the period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected duodenal ulcer, postoperative highly selective vagotomy. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the Veteran's service-connected disability above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of recurrent episodes of referable symptomatology to include incapacitating episodes; thus, the demonstrated manifestations - namely episodic symptoms of vomiting, nausea and dizziness without incapacitating episodes - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. These symptoms are part of or similar to symptoms listed under the schedular rating criteria, and the schedular rating criteria includes analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's duodenal ulcer, postoperative highly selective vagotomy, and referral for consideration of an extra-schedular evaluation is not warranted. Finally, the Veteran has not contended, and the evidence does not otherwise indicate, that duodenal ulcer, postoperative highly selective vagotomy has rendered the Veteran unemployable. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 20 percent for duodenal ulcer, postoperative highly selective vagotomy is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs