Citation Nr: 18147767 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-28 031 DATE: November 6, 2018 ORDER Entitlement to a 10 percent disability rating, but no higher, for service-connected gastritis, effective June 2, 2016, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) (hereafter referred to simply as “an acquired psychiatric disorder”) is remanded. FINDING OF FACT The Veteran’s service-connected gastritis is characterized by symptoms of reflux and epigastric distress. CONCLUSION OF LAW The criteria for a 10 percent disability rating, but no higher, for service-connected gastritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1986 to March 1988. This case is on appeal before the Board of Veterans’ Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In November 2017, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Veteran initially filed a claim for service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Id. Accordingly, the Board has re-characterized the issue as shown on the title page. A review of the record reflects additional medical evidence was added subsequent to the June 2016 Statement of the Case (SOC). Although this evidence was submitted without wavier of RO consideration, the evidence provided is either duplicative or essentially cumulative of the information previously considered. As such, no further action is required. The Veteran has not raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, the Veteran has not raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran alleges that his service-connected gastritis warrants a compensable disability rating over the entire appeal period, which began up to one year prior to April 15, 2015, the date the current application was received. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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 service-connected gastritis is currently assigned a noncompensable rating under Diagnostic Code 7307. 38 C.F.R. § 4.114. Under Diagnostic Code 7307, a 10 percent disability rating is warranted 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 disability rating is warranted for chronic hypertrophic gastritis with severe hemorrhages, or large ulcerated or eroded areas. Id. The Veteran underwent a VA examination on June 2, 2016. The examiner reviewed the claims folder, noting a diagnosis of gastritis from 1987. The Veteran stated that he has daily mid-epigastric burning lasting for about one hour, and that he takes baking soda with benefit. He also indicated that he experiences nighttime symptoms of regurgitation and reflux a few times per month, especially after eating close to bedtime. The examination report reflects that the Veteran has been self-treating with no further evaluation or treatment. Additionally, there were no symptoms noted in the VA examination from 2011. The examiner found that, although the Veteran has recurring symptoms, they are not severe. Rather, they occur 4 or more times per month but last less than 1 day. There were no incapacitating episodes or other pertinent physical findings. The report also shows that no imaging studies, laboratory testing, or other diagnostic procedures have been performed. Lastly, the examiner opined that the Veteran’s stomach condition does not affect his ability to work. At the Board hearing in November 2017, the Veteran reported that he takes baking soda and water to soothe his gastritis. Nonetheless, he claimed that he will still spit up a yellow discharge. The Veteran stated that this will happen about once per week, and that he has to avoid some foods because of this condition. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the application of a compensable disability rating for the Veteran’s service-connected gastritis under Diagnostic Code 7307. However, the Board finds that the evidence of record supports the application of a 10 percent disability rating for the Veteran’s service-connected gastritis under Diagnostic Code 7346, effective June 2, 2016. The evidence does not reveal any indication of small nodular lesions. Given the lack of complaints or treatment relating to gastritis in the claims file, the June 2, 2016 VA examination is the only evidence available with which to assess the severity of the Veteran’s gastritis. Although the examiner did not conduct any diagnostic, laboratory, or imaging studies, these were not necessary because the Veteran did not exhibit any symptoms associated with the presence of small nodular lesions. Indeed, the examiner characterized the Veteran’s gastritis symptoms as recurring, but not severe. Additionally, there was no evidence of any other pertinent physical findings. As such, the Board finds that the Veteran’s gastritis does not warrant a compensable evaluation under Diagnostic Code 7307. Nonetheless, the Board has also considered rating the Veteran’s gastritis under Diagnostic Code 7346 as analogous to a hiatal hernia. 38 C.F.R. § 4.114. Diagnostic Code 7346 assigns a 10 percent disability rating when there are two or more of the symptoms required for a 30 percent evaluation, but with less severity. A 30 percent evaluation is warranted when there is 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 disability rating is assigned when there are 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. During the VA examination on June 2, 2016, which is the only comprehensive evaluation of the Veteran’s gastritis dating from within the appeal period, he reported daily epigastric burning, along with regurgitation and reflux, which occur a few times per month. The evidence of record therefore shows that the Veteran’s service-connected gastritis results in reflux and episodes of epigastric distress, both of which are symptoms listed in the 30 percent evaluation under Diagnostic Code 7346. As such, the Board finds that the Veteran is entitled to a 10 percent disability rating for his service-connected gastritis, effective June 2, 2016. This is the date of the examination revealing these symptoms, and represents the earliest confirmation of their existence in the evidence of record. However, the Board declines to assign a higher evaluation because there is no evidence of any specialized treatment for gastritis during the appeal period. Furthermore, there is no indication that the Veteran’s gastritis results in arm or shoulder pain, some degree of which is required for a 30 percent disability rating under Diagnostic Code 7346. Although the Veteran asserted that he will still experience epigastric burning and spit up a yellow discharge despite taking baking soda and water, the June 2, 2016 examination report reflects no significant physical symptoms. As such, the Board concludes that the evidence of record does not support the application of disability rating in excess of 10 percent under Diagnostic Code 7346. In conclusion, the Board finds that the evidence of record warrants the assignment of a 10 percent disability rating, but no higher, under Diagnostic Code 7346 for the Veteran’s service-connected gastritis from June 2, 2016. Accordingly, the Veteran’s claim for an initial compensable disability rating for his service-connected gastritis is granted. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Veteran seeks service connection for an acquired psychiatric disorder, which he alleges is related to a racially-motived assault he experienced during service. According to the Veteran’s account of the incident, another soldier discharged an M-16 blank near his ear while calling him by a racial slur. The Veteran indicates that this event had a profound effect on his life, as he had never before been the target of racially-motivated violence. The Veteran claims that, due to this incident, he lives hike a hermit and has difficulties interacting with Caucasian people. See November 2017 Board hearing. The VA mental health clinical records indicate the Veteran has been variously diagnosed, including: polysubstance abuse, depression, bipolar vs. schizoaffective disorder, and chronic PTSD. However, he has never been afforded a VA psychological examination. Under VA regulations, a medical examination or opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The first element of the McLendon analysis, competent evidence of a current disability, is satisfied by the indication that he is followed in the mental health clinic, at least in part, for what is described as chronic PTSD. The second prong, which requires evidence of an in-service event, is met by an in-service treatment record from October 1987. This progress note confirms that the Veteran had an M-16 blank discharged near his left ear, and afterward complained of dizziness and tinnitus. Although there is no mention of this event being connected with a racially-motived assault, it nonetheless provides evidence of an in-service incident alleged by the Veteran as relating to his PTSD. The third element of the McLendon test, an indication that the current disability may be associated with the Veteran’s service, is met by the VA mental health clinical records. Here, the Veteran reported that he has experienced psychological problems since he was in the military. He claimed that his tinnitus reminds him of the aforementioned assault, and that he jumps at loud noises and has trouble sleeping due to nightmares of this event. Although the VA clinical records did not offer an opinion as to whether the Veteran’s acquired psychiatric disorder is linked to this incident, his report nonetheless provides an indication of a connection. The final prong of the McLendon analysis is satisfied by the fact that there is no competent evidence in the claims file establishing a nexus between the alleged in-service incident and the Veteran’s acquired psychiatric disorder. As stated above, there is insufficient medical evidence describing the etiology of the Veteran’s condition. Although the Veteran has stated numerous times that his psychological impairment stems from the claimed in-service assault, the Board notes that he is not competent to make this determination. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay witnesses are competent to establish the presence of observable symptomatology). Thus, the Board finds that the Veteran should undergo a psychological examination in order to address these issues. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a corroborated in-service stressor. In so doing, the examiner must opine whether the evidence of record, including the Veteran’s lay statements and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. b) Alternatively, if the Veteran is diagnosed by a psychiatric disorder other than PTSD, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 2. After completing the above, and any other development deemed necessary, adjudicate the appeal. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel