Citation Nr: 1756779 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-18 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for status post exploratory laparotomy with gastritis (gastritis). 3. Entitlement to a rating in excess of 10 percent for scars, status post right inguinal herniorrhaphy (scars). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. E. Griffith, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to May 1974 and from November 1974 to December 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer at a November 2013 hearing. A copy of the transcript has been associated with the claims file. The Veteran's claim of service connection for depression was granted by a December 2015 rating decision and is not currently on appeal. FINDINGS OF FACT 1. There is no evidence of combat exposure or corroborating testimony from other witnesses or documentation of the claimed stressor for PTSD. 2. The Veteran did not have severe hemorrhages or multiple small eroded or ulcerated areas, nor does he have persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which is productive of considerable impairment of health. 3. The Veteran did not have three or four (or more) scars that are unstable or painful or one scar that is both unstable and painful. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for a rating in excess of 10 percent for gastritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 7307, 7346. 3. The criteria for a rating in excess of 10 percent for scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural duties Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service connection The Veteran seeks service connection for PTSD. He states that this condition was caused by traumatic experiences while serving in Korea. Service connection generally may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a Veteran must show "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition to the above criteria, claims of service connection for PTSD require medical diagnosis conforming to the requirements of section 4.125(a) and the Diagnostic and Statistical Manual of Mental Disorders (DSM), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. §4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence shows that a veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances of service, lay statements alone may be enough to prove the in-service stressor. 38 C.F.R. § 3.304(f)(2). Additionally, a stressor may be proven with lay statements alone if the veteran claims a stressor due to fear of hostile military or terrorist activity, the claimed stressor is consistent with the circumstances of service, and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose or assess the etiology of an acquired psychiatric disorder, as this requires specialized training to understand the complexities of psychiatric medicine. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the criteria for service connection for PTSD have not been met. See 38 C.F.R. § 3.303. The Veteran claims service connection for his PTSD, which he says occurred from 1978 to 1979 while on active duty in Korea. At the most recent VA examination, in September 2015, the Veteran stated he was instructed to retrieve a Korean national whose car had broken down at the demilitarized zone (DMZ). He stated they were stopped by South Korean soldiers who accused the national of being a spy, shot the national. The Veteran stated that he was released, but he was bruised and feared for his life. The Veteran has a current diagnosis of PTSD, noted by a September 2015 VA examination. Therefore, the record contains competent evidence of a current diagnosis of PTSD in accordance with § 4.125. In regard to the second element of service connection for PTSD, the evidence does not show that the Veteran engaged in combat, nor does it show that the Veteran's claimed stressor is consistent with the circumstances of his service. The Veteran's DD-214 shows that he was a water treatment specialist. Additionally, the Veteran's service records, to include his DD-214, do not reflect any decorations, badges, or awards indicative of combat. VA memoranda from May 2010 and May 2012 found a lack of information to corroborate the stressor alleged involving a Korean national. Another VA memorandum from May 2012 noted that the Veteran was assigned to Camp Casey, approximately 11 miles from the DMZ in Korea. The September 2015 VA examiner noted that the Veteran's stressor was not related to the fear of hostile military or terrorist activity. Thus, lay statements alone are not sufficient to prove the claimed in-service stressor. Service treatment records, the Veteran's military file, and Army records do not mention any incident similar to what the Veteran described. See 38 C.F.R. § 3.304(f). In light of evidence noted above, to include the Veteran's DD-214, other service records, and the 2015 VA examination report, the Board finds that the weight of the evidence is against a finding of credible support evidence of the Veteran's claimed in-service stressor. In sum, the Veteran's stressors were not support by the probative evidence of record and he did not have combat service that could allow for the grant of PTSD on another basis. See 38 C.F.R. § 3.304(f). As the preponderance of the evidence is against the Veteran's claim of service connection for PTSD, there is no doubt to be resolved, and the claim therefore must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. III. Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Gastritis The Veteran contends that his service-connected gastritis is more severe than the 10 percent rating currently assigned. VA received the Veteran's claim for increased compensation in May 2009. For the reasons that follow, the Board concludes that an increased rating is not warranted. Under Diagnostic Code (DC) 7307, for hypertrophic gastritis (identified by gastroscope), a 10 percent evaluation is assigned for chronic hypertrophic gastritis with small nodular lesions, and symptoms. A 30 percent evaluation is assigned for chronic hypertrophic gastritis with multiple small eroded or ulcerated areas, and symptoms. A 60 percent evaluation is assigned for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307 (2017). The Veteran's gastritis may also be rated by analogy, DC 7346 for hiatal hernia. DC 7346 allows for a 30 percent rating for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is applicable to conditions with two or more of the symptoms listed in the 30 percent criteria of less severity. Finally, the maximum, 60 percent disability requires pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of serious impairment of health. 38 C.F.R. § 4.114, DC 7346. However, the Board notes that § 4.114 instructs that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In regard to the Veteran's lay statements, at a July 2009 examination, the Veteran did not describe dysphagia or radiating chest pain, but had frequent bowel movements. The Veteran added if he ate breakfast, he would spit it up, sometimes with other meals. He also stated that he takes medication (omeprazole and Maalox) daily, and has a burning pain in the pit of his stomach, to include being worse at night. At the February 2014 decision review officer hearing, the Veteran reported gas, causing emotional distress and difficulty sleeping. At the September 2015 VA examination, the Veteran reported periodic abdominal pain, recurrent nausea 4 or more times per year with a duration of less than one day, and transient vomiting 4 or more times per year with a duration of less than one day. Turning to the competent medical evidence of record, the July 2009 examination report noted the Veteran does not have the appearance of incapacitation due to stomach or duodenal disease and has not been in the hospital for many years. Upon physical examination, the Veteran had a soft abdomen with mild epigastric tenderness, but no masses or organomegaly. Normal bowel sounds were noted. The examiner remarked that the Veteran continued to have severe symptoms of reflux despite compliance with medical treatment. The September 2015 VA examiner opined that the Veteran had recurring episodes of symptoms that are not severe. The examiner noted no incapacitating episodes due to signs or symptoms of the Veteran's gastritis and no impact on the Veteran's ability to work. The examination report also noted diagnostic testing from past years, to include and upper endoscopy in 2005, an upper GI radiographic study in 2015, and a complete blood count (CBC) in 2014. The weight of the competent and probative evidence of record does not show evidence of small eroded or ulcerated areas, nor does it show severe hemorrhages. See 38 C.F.R. § 4.114, DC 7307. For example, physical examination in 2009 and 2015 revealed symptoms such as mild epipastic tenderness, pain, and recurrent nausea. The Veteran was provided with specific VA gastric examinations, but the signs and symptoms for a higher rating were not shown. In this regard, the summary of diagnostic testing as noted in the 2015 VA examination report likewise does not reflect such symptomatology. While the Veteran reported epigastric distress with symptoms such as dysphagia and regurgitation, there is no evidence of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain which is productive of considerable impairment of health. While the 2009 VA examination report indicates that the Veteran was terminated from his job due, in part to frequent restroom breaks, the more recent 2015 examination report reflect no functional impact on his ability to work. The medical and lay evidence do not reflect substernal or arm or shoulder pain. In light of the foregoing, the Board finds that the criteria for a higher rating have not been more nearly approximated. See 38 C.F.R. § 4.114, DC 7346. As the preponderance of the evidence is against the Veteran's claim of increased rating for gastritis, there is no reasonable doubt to be resolved, and the claim therefore must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 53. Scars The Veteran contends that his service-connected scars are more severe than the 10 percent rating currently assigned. For the reasons that follow, the Board concludes that an increased rating is not warranted. Skin disabilities are rated under 38 C.F.R. § 4.118. Specifically, the Veteran's scars have been rated under DC 7804 as scars other than on the head, face, or neck that are unstable or painful. For a 20 percent disability rating under this diagnostic code, there must be three or four unstable or painful scars. 38 C.F.R. § 4.118 DC 7804. The maximum 30 percent requires five or more unstable or painful scars. Id. DC 7804 notes an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. At the February 2014 decision review officer hearing, the Veteran testified that his scar still burns. The Veteran underwent several VA examinations for his scars. At a July 2009 VA examination, the examiner noted two scars. The scars were superficial, well healed, normally pigmented, smooth, flat and stable, with no adherence to underlying tissue. The Veteran reported pain on examination in one area but not in another. The impression was stable scars from the Veteran's hernia repair and exploratory laparotomy. Similarly, at the October 2011 VA examination, the examiner noted one painful scar, but no unstable scars (with frequent loss of skin over the scar). The examiner explicitly stated that no scars were both painful and unstable. Furthermore, at the September 2015 VA examination, the examiner noted one scar that was smooth, well healed, and normally pigmented without adhesion to underlying structure. There was no chronic skin change associated with the scar. The examiner noted no scars that were both painful and unstable, although the Veteran continued to report pain at the operative site. As detailed above, the competent and probative evidence does not show more than two scars or any unstable scars. As the preponderance of the evidence is against the Veteran's claim of increased rating for scars, there is no reasonable doubt to be resolved, and the claim therefore must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). (CONTINUED ON THE NEXT PAGE) ORDER Service connection for PTSD is denied. A rating higher than 10 percent for post exploratory laparotomy with gastritis is denied. A rating higher than 10 percent for post right inguinal hemiorrhaphy with stable scars is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs