Citation Nr: 1617931 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 10-11 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 10 percent for peptic ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2011, the Veteran testified before the undersigned during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. In November 2012, the Board remanded the issue on appeal for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In November 2012, the Board also reopened and remanded the claim of entitlement to service connection for an acquired psychiatric disorder. In a rating decision in April 2013 the Appeals Management Center granted service connection for depressive disorder (claim as depression and anxiety), noting that it was a total grant of the benefit sought and the issue was resolved in full. Thus the issue of service connection for an acquired psychiatric disorder is no longer in appellate status. Records in the Virtual VA paperless claims processing system (Virtual VA) and the Veterans Benefits Management System (VBMS) have been reviewed and considered. FINDING OF FACT The Veteran's peptic ulcer disease is productive of no more than mild symptomatology. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for peptic ulcer disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.114, Diagnostic Code 7305 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist 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). 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). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in May 2008 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the Agency of Original Jurisdiction/RO in October 2008. Nothing more was required. VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, identified and relevant private treatment records, records from the Social Security Administration (SSA), claims submissions, and lay statements have been associated with the record. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran also was afforded VA examinations in September 2008 and March 2013. The Board finds the VA examinations and opinions to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. 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, not the mere fact that the claims file was reviewed). The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Although the most recent VA examination was in March 2013, the Veteran does not allege nor does the evidence suggests a material change in the disability since this examination; therefore, a reexamination is not necessary under 38 C.F.R. § 3.327. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. During the Board hearing in December 2011, the undersigned discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with the notice requirements, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). As there is no specific Diagnostic Code for peptic ulcer disease, the Veteran's peptic ulcer disease has been rated by analogy under Diagnostic Code 7305 for duodenal ulcer. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). Under Diagnostic Code 7305, a 10 percent evaluation is warranted for a mild duodenal ulcer, with recurring symptoms once or twice per year. A 20 percent evaluation is in order for a moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent evaluation contemplates a moderately severe ulcer, 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 rating of 60 percent is assigned to severe ulcers 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. The Board observes in passing that words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Analysis In April 2008, the Veteran's claim was received for a rating higher than 10 percent for peptic ulcer disease. VA treatment records during the current appeal period show that the Veteran's weight ranged from 180 pounds to 195 pounds, with the Veteran weighing 195 pounds in September 2008 and 189 pounds in January 2013. Private medical records in June 2008, show that the Veteran had a several-day history of gastrointestinal upset. There were no reports of nausea, vomiting or melena. He reported that a day earlier he took his wife's medication, Augmentin. On VA examination in September 2008, the examiner reviewed the claims folder in conjunction with examining the Veteran. The examiner noted that the Veteran was being treated with Proton Pump Inhibitors, a restricted diet, and Omeprazole. In reporting the medical history, the examiner stated that there were no periods of incapacitation due to stomach or duodenal disease nor were there episodes of abdominal colic, nausea or vomiting, and abdominal distention. The Veteran did have gnawing or burning epigastric pain several times per week ranging 1 to 2 hours. He also had a history of nausea several times per week but there was no history of vomiting or diarrhea. The physical exam shows that there were no signs of significant weight loss or malnutrition nor were there signs of anemia. The Veteran retired in 2007 and was not currently employed. The peptic ulcer did not affect his usual daily activities. VA treatment records in July 2010 show that the Veteran had severe pain and burning especially after eating. He stated that he felt gassy and nauseous but there was no vomiting. The Veteran reported having the symptoms for 4 to 6 months. In December 2011, the Veteran had occasional dark stools. A VA gastroenterology consult in January 2012 shows that the Veteran complained of epigastric and left upper quadrant abdominal burning and pain, particularly when not eating. The examiner indicated that this usually was relieved by taking oral medications. There was no hematemesis, the stools were dark but not black nor tarry. VA treatment records in December 2012 show that the Veteran complained of being gassy and nauseated early in the morning. He reported drinking beer and orange juice at night. On VA examination in March 2013, the examiner noted that the Veteran reported that since his last examination his ulcer condition was getting better. The Veteran did state that 4 to 5 years earlier his stomach was bad but since then he started taking medications that have helped. He reported that he had heartburn and some reflux in his stomach in the mornings after awakening, however after eating breakfast and taking his medications his symptoms resolved. He also stopped drinking orange juice as well as eating spicy food, fried food, and tomatoes. He also limited his alcohol consumption to every other day. The Veteran reported a history of gastroesophageal reflux disease (GERD) noting that his current symptoms are related to GERD. He claimed he had constipation from medications he took for arthritis. There were no signs or symptoms due to any stomach or duodenum conditions to include recurring episodes of symptoms that are not severe, recurring episodes of severe symptoms, abdominal pain, anemia, weight loss, nausea, vomiting, hematemesis, melena, nor did he have incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. The examiner added that the Veteran's treatment plan included taking continuous medication for his condition. The examiner indicated that a stomach biopsy in February 2012 shows chronic inactive gastritis with reactive changes. The examiner opined that the Veteran's condition did not impact his ability to work. After reviewing the claims file and examining the Veteran she concluded that there was no current symptomatology associated with the disability to include but not limited to pain, vomiting, weight loss, hematemesis, melena, and anemia. There were no reported incapacitating episodes due to the service-connected peptic ulcer disability and there was no impact on the overall severity of the gastrointestinal disability. There was no ulcer disease found on the esophagogastroduodenoscopy (EGD) in February 2012. Based on the evidence of record during the current appeal period, the evidence does not more nearly approximate the criteria for a rating higher than 10 percent for peptic ulcer disease. To warrant the next higher rating of 20 percent under Diagnostic Code 7305 for moderate disability, there must be recurring episodes of severe symptoms two or three times a year, averaging 10 days in duration or with continuous moderate manifestations. During the appeal period the Veteran complained of pain and some nausea, his peptic ulcer disease did not present vomiting or any hematemesis. While he reported dark stools in January 2012, there was no history of diarrhea nor any melena during the appeal period. There also were no signs of anemia and the Veteran himself in December 2011 testified that he never had anemia. His weight throughout the appeal period ranged from 180 to 195 pounds with the Veteran weighing 195 pounds in September 2008 and 189 pounds more recently in January 2013. Hence, based on the evidence of record, the Veteran's peptic ulcer disease has presented at most mild symptoms and the criteria for the next higher rating of 20 percent are not approximated. In this case, the Veteran is competent to report symptoms such as irritations and distress because this requires only personal knowledge as it comes to the Veteran through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, in December 2011 the Veteran presented an inconsistent testimony. On the one hand he stated that his symptoms occurred 2 to 10 times per year where he would get up in the morning with pain and acid in his stomach. On the other hand, in responding to his representative he replied yes to having recurrent incapacitating episodes averaging 10 days or more in a duration at least 4 or more times per year, where he became nauseated and lost his appetite. See December 2011 Board hearing transcript pages 5-6. He also indicated that at times he was bedridden. Id. at 7. While competent, the Veteran's testimony is found to be not credible. The testimony conflicted with itself. It was also inconsistent with the medical evidence of record, to include the January 2008 private medical record showing no report of nausea, vomiting or melena and the September 2008 VA examination showing no periods of incapacitation. The Veteran's testimony provided no explanation whether the number of purported incapacitating episodes stayed true every year during the appeal period. Notably, the July 2010 VA treatment record documented complaints of feeling pain, gassy and nauseous for 4 to 6 months. For the reasons discussed above the Veteran's testimony regarding incapacitating episodes is not credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Although the Veteran's weight during the appeal period has fluctuated approximately by 15 pounds, as there is no evidence of anemia and no probative evidence of incapacitating episodes a 40 percent rating for moderate severe disability is not warranted. Similarly as there has been no evidence of vomiting, recurrent hematemesis, melena, and anemia the highest rating of 60 percent under Diagnostic Code 7305 for severe disability also is not warranted. Consideration has been given to the fact that Diagnostic Code 7305 does not contemplate the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). However, in evaluating the present disability, the Board has not considered any such effects, but rather the objective evidence outlined above and not any ameliorative effects of any medications. Moreover, absent the Veteran abstaining from using any such medications during the entire appeal period, it would be speculative for an examiner to provide such an assessment or for the Board to make such a determination. It is noteworthy that on the March 2013 VA examination the examiner noted that due to the Veteran's current treatment plan with continuous medication, he did not have any symptoms due to any stomach or duodenum conditions. As such, the Board finds that the Veteran's peptic ulcer disease does not warrant a disability rating in excess of 10 percent under Diagnostic Code 7305. The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Total Disability Rating based in Individual Unemployability (TDIU) The claim for an increased rating for a service-connected disability includes a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not alleged that he is unable to work due to his peptic ulcer disease. On VA examination in September 2008, the examiner noted that the Veteran retired in 2007 and his peptic ulcer did not affect his usual daily activities. The Veteran's SSA records show that his disabilities include back problems and hypertension. In December 2011 the Veteran himself testified that he retired due to health problems and the stress from doing so aggravated his ulcer. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The discussion above reflects that the symptoms of the Veteran's peptic ulcer disease are fully contemplated by the applicable rating criteria, which reasonably describe his disability level and symptomatology and do provide for a greater evaluation for more severe symptoms. His symptoms of pain and discomfort are contemplated in the rating criteria. There is neither evidence nor allegation of symptoms of and/or impairment due to the Veteran's peptic ulcer disease that is not encompassed by the schedular ratings assigned. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). (The Order follows on the next page.) ORDER A rating higher than 10 percent for peptic ulcer disease is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs