Citation Nr: 1622524 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 06-29 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating in excess of 20 percent for service-connected duodenal ulcer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2015, the Board remanded the Veteran's claim for further development. To the extent possible, the requested actions were taken, and the case has since been returned to the Board for adjudication. As noted in the Board's remand, although the Veteran initially requested a Travel Board hearing, he failed to appear for the scheduled hearing and has not requested a new hearing. Accordingly, his request for a Board hearing is deemed withdrawn pursuant to 38 C.F.R. § 20.704(d) (2015). The Board observes that in November 2015, a scheduled VA examination for the Veteran's ulcer disability was cancelled, as the Veteran stated that he no longer wished to pursue the instant claim. Later the same month, VA sent the Veteran a letter informing him that based on representations from the Huntington VA Medical Center, the Veteran did not wish to proceed with his claim, and a request to withdraw a claim must be in writing. To date, the Veteran has not submitted a written request to withdraw the instant appeal. Additionally, in a May 2016 memorandum, the Veteran's representative stated that he was unable to establish contact with the Veteran to clarify his intentions regarding a possible withdrawal of the instant appeal. Except for appeals that are withdrawn on the record at a hearing, a request to withdraw an appeal must be made in writing by the appellant or his representative. See 38 C.F.R. § 20.204. As there has been no written request to withdraw the instant appeal, it remains before the Board for adjudication. Id. This is a paperless appeal located on the Veterans Benefits Management System (VBMS). Documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or not pertinent to the present appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT During the course of the appeal, the Veteran's duodenal ulcer has not manifested to a moderately severe degree with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration, at least 4 or more times a year. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's duodenal ulcer have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.110, 4.112, 4.114, Diagnostic Code 7305 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Compliance The Board remanded the Veteran's claim for additional development in August 2015. In particular, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding VA treatment records and to send notice to the Veteran requesting that he identify any outstanding private treatment for his ulcer disability. The Board also directed the AOJ to schedule the Veteran for a VA examination to determine the current nature and severity of his ulcer disability. In September and December 2015, updated treatment records from the Huntington VA Medical Center were associated with the Veteran's claims file pursuant to the Board's remand instructions. In September 2015, the AOJ sent the Veteran a letter requesting that he advise the AOJ of any outstanding private treatment records pertaining to his ulcer disability. Copies of VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, were included with the letter for the Veteran to complete and return. However, the Veteran failed to complete and return the release form(s). As noted in the Introduction, although a VA examination pertaining to the Veteran's ulcer disability was scheduled to take place in November 2015, the examination was cancelled after the Veteran indicated that he no longer wished to pursue his claim. In a January 2016 Supplemental Statement of the Case, the AOJ readjudicated the Veteran's claim. Given the AOJ's efforts to obtain outstanding treatment records and to schedule a VA examination that was later cancelled by the Veteran, the Board finds substantial compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that the Board errs as a matter of law when it fails to ensure compliance with its prior remand instructions). II. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify The RO provided pre-adjudication VCAA notice, by letter, in December 2005. The RO sent the Veteran a supplemental VCAA letter in October 2008, and the claim was subsequently readjudicated. Thus, the Board finds that VA has fulfilled its duty to notify the Veteran. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. See 38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c). VA and private medical treatment records, in addition to lay statements, have been associated with the record. With respect to private treatment records, the Board finds that all appropriate attempts have been made to obtain adequately identified records. The Board notes that in September 2006, the Veteran submitted a release form for VA to obtain treatment records from the Holzer Clinic of West Virginia. Later the same month, the Holzer Clinic of West Virginia indicated that it did not have the requested treatment records. In April 2007, the RO sent a letter informing the Veteran of its inability to obtain these treatment records and requesting that he send any treatment records from this facility that were in his possession. The Veteran did not submit treatment records from this facility. The Board notes that the Veteran's claims file includes private treatment records from the Holzer Clinic in Gallipolis, Ohio. As noted above, in its August 2015 remand, the Board instructed the AOJ to obtain any outstanding treatment records. In September 2015, the AOJ sent the Veteran a letter informing him that additional evidence was needed to support his claim, and it specifically asked him to advise VA of any private treatment records in support of his increased rating claim that were not already in his claims file. The September 2015 letter included copies of release forms for the Veteran to complete and return. However, the Veteran failed to do so, nor has he otherwise identified any additional medical evidence in support of his claim. In light of this history, the Board finds that VA has made reasonable efforts to obtain adequately identified private treatment records, and no further efforts to obtain treatment records are required for VA to comply with its duty to assist. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1); Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (noting that VA's duty to assist is not a "one-way street" and that a claimant has a duty to cooperate with VA in developing supporting evidence). In general, VA must provide a medical examination or obtain a medical opinion when necessary to decide a claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During the course of this appeal, the Veteran was afforded two VA examinations pertaining to his ulcer disability. The first was in February 2006, and the second was in October 2008. Based on a review of the VA examination reports, the examiners reviewed the Veteran's medical history, including relevant laboratory and/or diagnostic imaging reports, conducted a physical examination of the Veteran, and considered the Veteran's contentions regarding his ulcer disability; thus, the record indicates that the VA examinations of record were adequate for rating purposes when they were rendered. Nevertheless, the Board remanded the instant appeal in August 2015, in part, for a new VA examination to determine the current nature and severity of the Veteran's ulcer disability, as the Veteran's representative asserted a worsening of the Veteran's condition in a July 2015 statement. However, the record reflects that the examination request was cancelled in November 2015. The Veteran has not responded to the November 2015 letter, nor the subsequent Supplemental Statement of the Case, and there is no indication that the Veteran requested that a VA examination be rescheduled. VA's duty to assist is not a "one-way street"; instead, a claimant has a duty to cooperate with VA in developing evidence to support a claim. See Hayes, 5 Vet. App. at 68. Given the adequacy of the February 2006 and October 2008 VA examinations, in addition to the cancellation of the scheduled November 2015 VA examination, the Board finds that it has no further duty to obtain a VA examination or medical opinion prior to adjudicating the instant appeal. See id.; see also 38 C.F.R. § 3.655(a) (stating that a claim may be adjudicated based on the record when a claimant fails to appear for a VA examination without good cause). As there is no indication of any outstanding relevant evidence, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to his claim is required for VA to comply with its duty to assist. III. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's ulcer disability is currently assigned a 20 percent rating pursuant to Diagnostic Code 7305, which applies to duodenal ulcers. See 38 C.F.R. § 4.114, Diagnostic Code 7305; see also 38 C.F.R. § 4.110 (providing that in evaluating ulcers specifically, care should be taken that the findings adequately identify the particular location of the ulcer). Under Diagnostic Code 7305, a 10 percent disability rating is warranted for mild duodenal ulcers that are manifested by recurring symptoms once or twice yearly. See 38 C.F.R. § 4.114, Diagnostic Code 7305. A 20 percent disability rating is warranted for moderate duodenal ulcers that are manifested by recurring episodes of severe symptoms 2 or 3 times a year, averaging 10 days in duration, or by continuous moderate manifestations. Id. A 40 percent disability rating is warranted for moderately severe duodenal ulcers that are considered 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, and at least 4 or more times per year. Id. A 60 percent disability rating is warranted for severe duodenal ulcers that are manifested by pain that is 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. Id. For purposes of evaluating disabilities pertaining to the digestive system, including ulcers, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for 3 months or longer, and "minor weight loss" means a loss of 10 to 20 percent of the individual's baseline weight, sustained for 3 months or longer. See 38 C.F.R. § 4.112. "Baseline weight" means the average weight for the 2-year period preceding onset of the disease. Id. Although "incapacitating episode" is not defined under Diagnostic Code 7305, other Diagnostic Codes that correspond to the digestive system define "incapacitating episode" as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See, e.g., 38 C.F.R. § 4.114, Diagnostic Code 7345, Note, Diagnostic Code 7354, Note. Factual Background The Veteran is seeking a rating in excess of 20 percent for his service-connected ulcer disability. As set forth in his statements, such as those dated in November 2005, July 2006, and August 2006, the Veteran contends that he loses blood 6 to 8 times per year due to his ulcer disability. The Veteran stated that in January 2006, he lost nearly a pint of blood but did not seek medical attention because the bleeding stopped on its own; however, in April 2006, he lost blood again, passed out, fell, and broke his right ankle. As documented in the February 2006 VA examination report, the Veteran's first episode of ulcer disease was in 1957, and he reportedly had additional documented ulcers in 1959, 1961, 1966, 1998, and 2001. For treatment, the Veteran took 30 mg of Prevacid each morning and 150 mg of Zantac each evening. The Veteran reported some mild aching or gnawing in the right upper quadrant on a daily basis, which occurred before eating and subsided after taking Zantac. The examination report notes previous hospitalizations due to duodenal ulcer(s) in 1959 and 1961, and for gastrointestinal (GI) bleeding in 1998 and 2001. However, the examination report provided that there was no history of trauma to the stomach; no history of neoplasm; no periods of incapacitation due to stomach or duodenal disease; no episodes of abdominal colic, nausea or vomiting, or abdominal distention; and no symptoms of reflux related to duodenal disease. There were previous episodes of hematemesis or melena in 1992, 2000, and 2001. There were no signs of significant weight loss or malnutrition; the Veteran had gained 11 pounds in the last year. There were also no signs of anemia. Abnormal findings included a large subcutaneous hematoma that was resolving in the upper and lower quadrants, measuring 7.5 x 7.5 inches. According to a March 2006 upper GI imaging study, there were no acute or significant focal abnormalities. The diagnosis was recurrent duodenal ulcer with none present at this time, and the examiner opined that the Veteran's disability did not affect his daily activities. April 2006 private treatment records from the Holzer Clinic document treatment for the Veteran's right ankle fracture, but do not contain document complaints relating to, or treatment for, the Veteran's ulcer disability. A May 2007 VA treatment record notes a history of anemia, but it does not indicate that there were current signs or symptoms of anemia. The treatment record also provides that there was not unintentional weight loss greater than 10 pounds in the month prior. The October 2008 VA examination report references the April 2006 ankle fracture, which, according to the Veteran, occurred after fainting due to upper-GI bleeding. However, as noted by the examiner, although the Veteran was seen on several occasions at the VA in April 2006, there was no documentation in the treatment records of any GI bleeding at that time. The examiner provided that the Veteran claimed that he usually experienced 3 to 4 GI bleeds per year, but never went to the hospital for treatment. The Veteran denied seeing blood in vomit or in stool; instead, the Veteran provided that he could taste or smell the blood. The examiner noted that all stool samples checked for occult blood have been negative, and the last complete blood counts from 2006 and 2007 were normal. The examiner detailed that based on review of the Veteran's progress notes, there was no documented history of GI bleeding in the 2 years prior. The examiner referenced a March 2006 VA progress note stating that results of an upper GI scope and colonoscopy at Holzer Medical Center were negative, which was further confirmed by a negative upper GI scope at the Huntington VAMC in early 2006. The Veteran reported a history of weekly nausea, in addition to a weekly history of vomiting. According to the examination report, there was no history of trauma or neoplasm, there were no periods of incapacitation due to stomach or duodenal disease, and there was no gnawing or burning pain. There were no signs of anemia; nor was there significant weight loss or malnutrition, as there were no changes to the Veteran's weight. The examiner noted that the Veteran's complete blood count, ferritin levels, and liver function tests were normal, which strongly suggested that the Veteran did not have clinically significant GI bleeding, as such bleeding would have adversely impacted the Veteran's hemoglobin, hematocrit, and ferritin levels. As for a diagnosis, the examiner provided that there was no evidence of active peptic ulcer disease. The examiner provided that the Veteran was unable to perform several activities of daily living due to low back problems, but he did not have any restrictions due to his ulcer disability. The examiner stated that he could not find any evidence of progression of the Veteran's ulcer disability since the February 2006 VA examination. A December 2013 VA pharmacy note pertaining to the Veteran's atrial fibrillation medication indicated that adverse effects included blood in stool. The pharmacy note provides that the Veteran reported blood in his stool one week prior and that he denied any further bleeding since. Analysis Upon careful review of the evidence, the Board finds that the 20 percent rating more closely corresponds to the Veteran's level of disability during the course of the appeal than does the next highest rating. Thus, the preponderance of the evidence is against assigning a rating greater than 20 percent for the Veteran's ulcer disability. Specifically, there is no competent medical evidence at any time during the course of appeal that would warrant assigning a rating of 40 percent or higher for the Veteran's ulcer disability. For instance, although the VA examination reports provide that the Veteran experienced mild aching or gnawing, nausea, and/or vomiting on account of his ulcer disability, the evidence of record does not demonstrate the presence of moderately severe symptomatology, such as that characterized by impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration, at least 4 or more times per year. Both examination reports provided that the Veteran did not have symptoms of anemia, significant weight loss, or incapacitating episodes. The Board finds significant that according to the October 2008 VA examiner, the Veteran's normal hemoglobin, hematocrit, and ferritin levels strongly suggested that he did not have clinically significant GI bleeding. Moreover, the examiner could not find any evidence of progression of the Veteran's ulcer disability since the February 2006 VA examination. The Board notes that although the Veteran reported blood in his stool in December 2013, based on a review of medical evidence of record, it appears that this was an isolated incident that was due to atrial fibrillation medication; as such, it does not suggest moderately severe ulcer symptomatology that would warrant an increased rating, nor does it suggest that an additional medical opinion is necessary regarding GI bleeding. The Board has considered the Veteran's statements regarding his ulcer disability and acknowledges that as a lay witness, the Veteran is competent to report his medical history and observable symptomatology, such as pain, nausea, and visible bleeding. See, e.g., Layno, 6 Vet. App. at 469-70 (noting that personal knowledge is "that which comes to the witness through the use of his senses"). Nevertheless, in determining whether the severity of the Veteran's disability more closely approximates the criteria required for a higher disability rating, the Board finds that the objective medical findings by skilled professionals are more persuasive. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Notwithstanding the Veteran's reports of multiple instances of GI bleeding per year, which, according to the October 2008 VA examination report, is sometimes based on the taste or smell of blood rather than visible blood in vomit or stool, laboratory tests strongly suggested that the Veteran did not have clinically significant GI bleeding. Further, as indicated above, the objective medical findings do not support a rating higher than 20 percent for the Veteran's service-connected ulcer disability, as there is no indication of moderately severe ulcer symptomatology characterized by impairment of health manifested by anemia and weight loss, or by recurrent incapacitating episodes. Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent for the Veteran's ulcer disability. As the greater weight of evidence is against the claim, there is no doubt on this matter that could be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107(b). IV. 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 Compensation for consideration of an extraschedular rating. See 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 periods of hospitalization so as to render the regular schedular standards impractical. See id. 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. See id. There must be a comparison between the level of severity and symptomatology of the service-connected disability with established criteria. If the criteria reasonably describe a claimant'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. See Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his ulcer disability. During the course of the appeal, and as set forth in the VA examination reports, the Veteran's disability has been manifested by gnawing or burning pain, nausea, and vomiting. The 20 percent rating assigned contemplates these impairments. As such, the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Finally, a veteran may be awarded an extraschedular rating based on the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). Notably, in addition to his ulcer disability, the Veteran is service-connected for acne vulgaris. However, neither the Veteran nor his representative has indicated any specific service-connected disabilities that are not captured by the schedular evaluations of the Veteran's individual service-connected conditions. After applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), the Board finds that 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. ORDER Entitlement to a rating in excess of 20 percent for service-connected duodenal ulcer is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs