Citation Nr: 18147390 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 10-39 771 DATE: November 5, 2018 ORDER Entitlement to an initial disability rating in excess of 20 percent for peptic ulcer disease is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s peptic ulcer disease was productive of moderate symptoms, with continuous moderate manifestations. There is no evidence of 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. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 20 percent for peptic ulcer disease have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1977 to September 1981, December 1981 to December 1986 and December 1996 to April 2009. The Veteran testified before the undersigned Veterans Law Judge in December 2016. A transcript of that hearing is in the record. In November 2017, the Board remanded the Veteran’s claim in order to conduct additional development. Entitlement to an initial disability rating in excess of 20 percent for peptic ulcer disease The Veteran seeks an increased rating for his peptic ulcer disease, rated at 20 percent throughout the period on appeal. He maintains that he suffers from symptoms more severe than what is contemplated by his current disability rating. Service connection was granted and a 20 percent rating assigned in a July 2009 rating decision. A subsequent rating decision in April 2011 continued the 20 percent evaluation. For the reasons that follow, the Board finds that a disability rating higher than the currently assigned 20 percent is not warranted. Disability evaluations are determined by comparing a veteran’s present symptoms 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. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s peptic ulcer disease is currently evaluated under 38 C.F.R. § 4.114, DC 7304, for gastric ulcer disease. The peptic ulcer disease is evaluated as 20 percent disabling effective from May 1, 2009. Under DC 7304, a 20 percent evaluation is warranted 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 relevant medical evidence of record includes VA and private treatment records, as well as lay statements from the Veteran. A review of the Veteran’s VA treatment records includes a May 2009 private treatment record which revealed findings that were compatible with some peptic disease or duodenitis. The examiner could not exclude a shallow ulcer in a fold. In December 2010, the Veteran underwent an esophagogastroduodenoscopy procedure which revealed findings of a normal esophagus and duodenum, and mild gastritis in the antrum. In September 2010, the Veteran underwent a VA examination to evaluate the severity of his peptic ulcer disease. The Veteran reported symptoms that included burping, discomfort and difficulty sleeping. The examiner stated that the condition did not affect the Veteran’s body weight. The Veteran reported that he did not have abdominal pain. The Veteran experienced nausea and vomiting as often as two times per week. He has never vomited blood. He has passed black, tarry stools 10 times in total. The condition did not cause anemia. The Veteran was taking Omeprazole to treat his symptoms. The Veteran reported that he was never hospitalized and he never had any surgery for this condition. He also stated that he did not experience abdominal distention, diarrhea or constipation. His stomach condition did not cause incapacitation. The Veteran reported that he did not experience any overall functional impairment from this condition. An examination of the abdomen revealed no striae on the abdominal wall, no distension of superficial veins, no ostomy, no tenderness to palpation, no palpable mass, no splenomegaly, no ascites, no ventral hernia, no liver enlargement and no aortic aneurysm. There were no findings of malnutrition. The examiner also stated there was no impairment in either physical or sedentary activities of employment. Pursuant to the Board remand, the Veteran underwent another VA examination in May 2017 to evaluate his disability. The examiner noted that the Veteran’s treatment plan did not include taking continuous medication for his diagnosed gastric ulcer. The Veteran was found to have transient nausea, with four or more episodes of nausea per year and the average duration of each episode lasting less than one day. The Veteran did not have any incapacitating episodes due to signs or symptoms of any stomach or duodenum condition. The VA examiner stated that the Veteran’s disability did not impact his ability to work. A review of the Veteran’s available VA treatment records does not show any complaints or treatment related to his peptic ulcer disease. Following a review of the evidence of record, the Board finds that the Veteran’s peptic ulcer disease does not support the assignment of a rating higher than 20 percent at any point during the period on appeal. The Board finds that throughout the period on appeal, the Veteran’s peptic ulcer disease most closely manifested in moderate symptoms. The evidence does not show the Veteran had moderately severe symptoms of peptic ulcer disease, such as 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 a year. There is no indication the Veteran had weight loss due to his peptic ulcer disease. The VA treatment records do not show the Veteran had symptoms of anemia. There has been no evidence of peptic ulcer disease symptoms of vomiting, recurrent hematemesis, melena, or anemia. Accordingly, the preponderance of the evidence is against a rating in excess of 20 percent for peptic ulcer disease. The Board has considered the competent statements of the Veteran as to the extent of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While the Veteran is competent to report his various symptoms, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In sum, the Board finds that a rating in excess of 20 percent for peptic ulcer disease for the period on appeal is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to increased ratings. 38 U.S.C. § 5107. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel