Citation Nr: 1805046 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-18 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected duodenal ulcer, status post vagotomy with pyloroplasty, gastritis, and gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1956 to September 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has since been transferred to the New York, New York RO (hereinafter, Agency of Original Jurisdiction (AOJ)). The Board notes that on the Veteran's VA Form-9, substantive appeal he requested to appear at a personal hearing before a Veterans Law Judge (VLJ). However, the claims file includes a November 2009 correspondence where the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704 (2017). The case was previously remanded by the Board in February 2016 and May 2017 for additional development. That development has been completed, and thus the case may now be reviewed on the merits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran exhibited continuously moderate symptoms of intermittent heartburn, abdominal pain, distention, indigestion, and epigastric distress, reflective of the 20 percent rating criteria. CONCLUSION OF LAW The criteria for a 20 percent rating for service-connected duodenal ulcer have been met. 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7305 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks a higher disability rating for his service-connected duodenal ulcer, status post vagotomy with pyloroplasty, gastritis, and gastroesophageal reflux disorder (GERD). In this regard, the appeal period begins June 7, 2005, the date VA received the Veteran's claim for an increased rating, plus the one-year look-back period. Thus, the Veteran seeks entitlement to a rating in excess of 10 percent from June 7, 2005. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Staged ratings are appropriate for an increased rating claim when 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 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49(1990). At the outset, the Board notes that 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, as indicated in the instruction under the title "Diseases of the Digestive System," 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 and 4.113. Therefore, 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. 38 C.F.R. § 4.114. As the Veteran's hernia is a separate and distinct disability under §4.14, rated based on the size and supportability of his hernia, the Board will only address the symptoms and manifestations of the Veteran's gastrointestinal disability per the Diagnostic Codes of duodenal ulcer, GERD, and gastritis for purposes of one disability picture. In this case, the AOJ has assigned the Veteran's disability to be ratable under Diagnostic Code 7305, duodenal ulcer. Id. Under that Diagnostic Code, a 20 percent evaluation is warranted for a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times per year averaging ten days in duration; or with continuous moderate manifestations. A 40 percent evaluation is warranted for a moderately severe duodenal ulcer; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times per year. A maximum 60 percent evaluation is warranted for a severe duodenal ulcer; 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. 38 C.F.R. § 4.114. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As the Veteran's gastrointestinal disability also encompasses GERD and gastritis, the Board will also consider rating his disability under the following criteria. Under Diagnostic Code 7346 for hiatal hernia, encompassing GERD by analogy, a 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. The August 2006 VA treatment records reflect that there was no evidence of gastroesophageal reflux, but that the Veteran experienced burning pain, irregularly lasting minutes but was relieved by the usage of antacids. Looking at the other evidence of record, the Veteran was afforded a VA examination in September 2006, where he denied experiencing symptoms of nausea and vomiting. Rather, the Veteran reported that he usually had three regular bowel movements per day, and denied any instance of melena or bright red blood in the rectum. The Veteran also described experiencing daily intermittent heartburn, epigastric discomfort, and diarrhea precipitated by eating regular sized meals. As a remedy, the Veteran indicated that eating two small meals per day was more ideal to manage his condition. Moreover, the Veteran denied having any periods of incapacitation since 1967. On physical examination, the examiner noted there was no evidence of tenderness, distention, masses, or organomegaly. Based on the foregoing, the examiner opined that the Veteran did not have an ulcer, but rather diagnosed the Veteran with gastritis as confirmed by an esophagogastroduodenoscopy (EGD). The June 2007 VA addendum noted that the Veteran experienced daily intermittent heartburn aggravated by fried foods and fruit juices, but with no instance of nausea, hematemesis, melena, diarrhea, or periods of incapacitation. The examiner noted that the Veteran had chronic daily gastrointestinal symptoms. In June 2007, the Veteran stated that he had to eat six small meals per day and could not have spicy food or acidic drinks. The Veteran underwent a private evaluation in January 2009. The corresponding medical report shows that the Veteran had moderate GERD and a mass-like appearance in the stomach. The report also noted that a December 2008 gastroscopy had revealed evidence of inflammatory changes. In May 2009, the Veteran underwent a VA examination to ascertain the nature and etiology of an abdominal wall ventral hernia. That examination noted that the Veteran was diagnosed with both moderate GERD and gastritis. Again, on examination for the Veteran's hernia in November 2010, the Veteran's gastrointestinal disability was again characterized as moderate GERD and gastritis. In December 2012, the Veteran stated that he wore an umbilical truss all the time. The April 2016 VA examiner noted that the Veteran's ulcer caused epigastric pain-burning, bloating, reflux, and nausea without emesis. Active symptoms of the Veteran's disability include non-severe recurring episodes up to four times per year, lasting less than a day, and pronounced abdominal pain occurring at least monthly, that is only partially relieved by standard ulcer therapy. The Veteran reported transient nausea, up to four times per year, lasting less than a day, and denied any incapacitating episodes. The examiner also noted that the Veteran's vagotomy causes alkaline gastritis and persisting diarrhea. He did not have incapacitating episodes. The examiner confirmed the active nature of the Veteran's condition noting that his symptoms require ongoing care and near daily treatment with oral medications. Most recently, the Veteran underwent VA examination in October 2017. The examiner noted that the Veteran's ulcer caused recurring episodes of severe symptoms, four or more times per year, abdominal pain which occurred at least monthly, which was relieved by standard ulcer therapy. The examiner noted that there was no history of incapacitating episodes. Moreover, the examiner indicated that while the Veteran is known to have hypertrophic gastritis and vagotomy with pyloroplasty, there were no present symptoms or findings associated with the conditions on examination. The examiner concluded that the Veteran's symptoms of abdominal pain and distention are transient, occurring at least one to two times per month, and are severe in nature as caused by his duodenal ulcer, gastritis, and GERD. Additionally, the examiner noted that the Veteran's symptoms are usually relieved with medications, specifically Omeprazole. Lastly, the examiner noted that while it is particularly difficult to differentiate which symptoms are caused by the Veteran's ventral hernia and which are caused by his duodenal ulcer, gastritis, and GERD, the Board attributes all associated symptoms to the latter conditions for adjudicative purposes. See generally 38 C.F.R. § 3.102 ; Mittleider v. West, 11 Vet. App. 181, 182 (1998). Throughout the record the Veteran's disability is characterized by mild or moderate gastrointestinal symptoms, including intermittent heartburn, abdominal pain, distention, indigestion, and epigastric distress. The Veteran's episodes ranged from being considered mild or moderate burning pain lasting minutes, but relieved by antacids, to experiencing more persistent, non-severe episodes of pronounced abdominal pain that is only partially relieved by standard ulcer therapy in April 2016. By 2017, the Veteran experienced more severe episodes occurring monthly, but lasting less than one day per the most recent VA examination. The Veteran has required treatment with oral medications throughout the entire appeal period. The relevant Diagnostic Code describes a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year, averaging ten days in duration or with continuous moderate manifestation warrants a 20 percent disability rating. The Board finds that the Veteran's disability picture is most reflective of the 20 percent criteria, as the Veteran's symptoms were mild to moderate throughout the bulk of the appeal period, just beginning to become severe in 2017. To this extent, the appeal is granted. Nevertheless, despite the slight increase in severity of the Veteran's symptoms, the occurrence of his intermittent symptoms remains lasting one day or less which is not reflective of a higher rating. To that end, the Board notes that throughout the entire appeal period, the Veteran's disability was never characterized by anemia, weight loss, or incapacitating episodes which are key components of the disability picture warranting the higher, 40 percent rating. As such, a 20 percent rating is warranted for the entire appeal period. 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7305 (2017). ORDER A 20 percent rating for duodenal ulcer, status post vagotomy with pyloroplasty, gastritis, and gastroesophageal reflux disorder (GERD) is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs