Citation Nr: 1343294 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-27 277 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for duodenal ulcer. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July to September 1944. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Houston, Texas RO. In May 2011, a Decision Review Officer hearing was held at the RO; a transcript of the hearing is included in the claims file. In November 2012, the Board remanded the matter for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT At no time during the evaluation period is the Veteran's duodenal ulcer disease shown to have been manifested by more than mild ulcer disease; recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations, are not shown; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is not shown. CONCLUSION OF LAW A rating in excess of 10 percent for duodenal ulcer is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.20, 4.21, 4.114, Diagnostic Code (Code) 7305 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claim. A June 2010 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent post-service treatment records have been secured. The RO arranged for a VA examination in August 2010, which will be discussed in greater detail below, though the Board finds this examination to be adequate as it included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. The Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Veteran's service connected gastrointestinal disability encompasses both duodenal ulcer and hiatal hernia, and may be rated under Code 7305 (for duodenal ulcer) or Code 7346 (for hiatal hernia). A governing regulation provides that ratings under these two codes may not be combined, but that a single rating is to 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. 38 C.F.R. § 4.114. Under Code 7305, a 40 percent rating is warranted for moderately severe duodenal ulcer disease, 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. A 20 percent rating is warranted for moderate duodenal ulcer disease, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations. A 10 percent rating is warranted for mild duodenal ulcer disease, with recurring symptoms once or twice yearly. 38 C.F.R. § 4.114. Under Code 7346, a 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or symptom combinations productive of severe impairment of health. A 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. With two or more of the symptoms for the 30 percent evaluation of lesser severity, a 10 percent rating is warranted. 38 C.F.R. § 4.114. For the purposes of evaluating conditions under 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. The Veteran's claim for an increased rating was received in May 2010; the relevant period for consideration is therefore from May 2009. There are no treatment records available for the period from May 2009 to August 2010. On August 2010 VA examination, the Veteran complained of indigestion and indicated that he was not taking any medication. He denied any nausea or vomiting, and hematemesis and/or melena was not noted. He reported some constipation but no diarrhea. There was no evidence of postgastrectomy syndrome or peritoneal adhesions. There were no periods of incapacitation due to stomach or duodenal disease. He reported no history of trauma or of hospitalizations or surgery. He denied any pain or history of neoplasm. The examiner opined that there were no effects of the condition on the Veteran's occupational functioning or activities of daily living. On physical examination, the Veteran showed signs of some weight loss. There was no evidence of anemia. The abdomen was soft with no tenderness and no masses. The organs and the bowel sounds were within normal limits. An upper GI series showed no masses, polyps, strictures, diverticula, ulcerations, or hiatal hernia; the impressions included mild esophageal dysmotility and mild gastroesophageal reflux. The diagnosis was gastroesophageal reflux disease (GERD), with no evidence of duodenal ulcer. At the May 2011 RO hearing, the Veteran testified that he had lost 20 pounds because he was holding back on eating and currently weighed 125 pounds. He testified that he limited himself as to what he would eat, because overeating would cause him acid reflux, excessive gas, and a little bit of stomach pain. In November 2012, the Board remanded the matter to obtain outstanding VA treatment records. VA treatment records from October 2010 to December 2012 are silent for any complaints or findings relevant to the disability on appeal. As is noted above, ratings under Code 7305 and 7346 may not be combined, and the duodenal ulcer disease must be rated under the diagnostic code that best reflects the total disability picture. Here, that code is Code 7346, for hiatal hernia, as the Veteran is not shown to have had recurrence of ulcer(s). (Without recurrence of ulcers he could not have had recurring episodes of severe symptoms two or three times a year, or with continuous moderate manifestations, and such are not shown.) As the record does not show that at any time during the evaluation period there was persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, and the overall digestive system disability picture presented is not one consistent with considerable impairment of health, the next higher (30 percent) schedular rating under Code 7346 is not warranted, including on the basis of elevation to account for the severity of the overall digestive disability picture. In this regard it is noteworthy that there has been no recurrence of duodenal ulcer during the evaluation period; that the Veteran has not reported dysphagia, regurgitation, or any substernal or arm or shoulder pain; and that a VA examiner has specifically opined that the Veteran's service-connected digestive problems would not impact on his ability to work. The Board also has considered whether this claim warrants referral for consideration of an extraschedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms". Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Comparing the manifestations of the Veteran's duodenal ulcer disease and the associated impairment shown to the rating schedule, the Board finds that the degree of disability shown throughout the entire period under consideration is wholly encompassed by the schedular criteria for the rating assigned, and consequently those criteria are not inadequate. The Veteran has not alleged any symptoms or impairment that exist but are not encompassed by schedular criteria. Therefore, referral for consideration of an extraschedular rating is not necessary. The record reflects that the Veteran is retired due to eligibility based on age, and a VA examiner has opined that the Veteran's service-connected gastrointestinal disability would not impact on employment; therefore, the matter of entitlement to a TDIU rating is not raised by the record. The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. ORDER A rating in excess of 10 percent for duodenal ulcer is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs