Citation Nr: 18146456 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-31 393 DATE: November 1, 2018 ORDER Entitlement to a rating of 40 percent for duodenal ulcer disease is granted. REMANDED Entitlement to service connection for anemia, to include as secondary to service-connected duodenal ulcer, is remanded. FINDING OF FACT The Veteran’s duodenal ulcer disease was manifested by mild; infrequent episodes of epigastric distress with characteristic mild circulatory symptoms; or continuous mild manifestations. CONCLUSION OF LAW The criteria for a disability rating of 40 percent for duodenal ulcer disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7 4.110, 4.114, Diagnostic Code 7308. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from June 1966 to April 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Disability Evaluation – Duodenal Ulcer Disease The Veteran asserts that his symptoms of duodenal ulcer disease are worse than contemplated by the rating currently assigned. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran’s higher rating claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. According to the criteria set forth in Diagnostic Code 7308, a 40 percent rating is warranted for moderate symptoms; less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating, the maximum under the Diagnostic Code 7308, is warranted for severe symptoms; associated with nausea, sweating, and circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114. The Veteran was afforded a VA examination in April 2014. At this time, he reported he experienced sharp pain in the stomach and bleeding when the condition began in 1971. He reported his symptoms at the April 2014 VA examination as episodic gas and bloating. The Veteran stated he took over the counter mediation to treat his condition. He denied the use of prescription medication. Upon examination, the examiner found the Veteran had recurring episodes of symptoms that were not severe occurring at 2 times per year lasting 1-9 days in duration. The examiner found the Veteran had recurring episodes of severe symptoms occurring 2 times per year lasting less than 1 day in duration. The Veteran endorsed abdominal pain that occurred less than monthly, were periodic, and relieved by standard ulcer therapy. He had nausea that was mild, occurring 4 or more times per year, and lasting less than 1 day in duration. He had vomiting that was mild, occurring once per year, and lasting less than 1 day in duration. The Veteran was not shown to have incapacitating episodes. The examiner diagnosed duodenal ulcer. The examiner found that the Veteran’s condition was resolved. The Veteran was afforded another VA examination in May 2016. At this time, the Veteran reported gastritis, with flatus after eating, and diarrhea after most meals. He reported he had lost 10 to 15 pounds in the past 6 months. He reported taking continuous medication for the diagnosed conditions. Upon examination, the examiner found the Veteran did not have any signs or symptoms due to any stomach or duodenum conditions. He did not have any incapacitating episodes, and no other conditions. The examiner did not find any other pertinent physical findings, complications, conditions, signs or symptoms related to the disability. The examiner found the Veteran to have mild gastroesophageal reflux, no hiatal hernia, and a normal mucosal pattern without evidence of filling defects or ulcerations. The examiner diagnosed postsurgical changes most consistent with a Bilroth 2 gastrojejunostomy; no contrast leaks, strictures, or ulcerations identified; and mild gastroesophageal reflux. A review of the record shows that the Veteran receives periodic treatment for various disabilities at the VA Medical Center and from private providers. However, there is no indication from the record that the Veteran has reported symptoms of his duodenal ulcer disease to his treatment providers that are worse than those reported at his VA examinations. After review of the medical evidence the Veteran’s symptoms of duodenal ulcer disease more nearly approximate the criteria for a 40 percent rating. His disability picture was mild, with infrequent episodes of symptoms. Although the symptoms have been described as mild, the examination reports did note diarrhea and weight loss. However, the criteria for a 60 percent rating are not met because the Veteran does not more nearly have sweating, and circulatory disturbance after meals, hypoglycemic symptoms, and weight loss with malnutrition and anemia. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 40 percent. REASONS FOR REMAND Service Connection - Anemia The Board notes that the Veteran has consistently asserted that he has anemia as a result of his active service. Indeed, the Veteran’s service treatment records show that the Veteran was treated for hemorrhage as secondary to gastrointestinal ulcers. In light of the Veteran’s statements and his service treatment records, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of any current anemia. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, current treatment records should be identified and obtained before a decision is made in this case. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any current anemia. The examiner should review the record and indicate that review in the report. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current anemia is proximately due to, or the result of, the service-connected duodenal ulcer. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current anemia is permanently aggravated by the Veteran’s service-connected duodenal ulcer. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel