Citation Nr: 18155113 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-51 507 DATE: December 4, 2018 ORDER Entitlement to an initial 10 percent rating, and no higher, for service-connected duodenal ulcer is granted for the period on appeal. FINDING OF FACT The Veteran has experienced mild symptoms, to include recurrent pain, associated with his service-connected duodenal ulcer. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for service-connected duodenal ulcer are met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.113, 4.114 Diagnostic Code 7305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1977 to September 1978, with additional service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to an initial compensable rating for service-connected duodenal ulcer The Veteran contends that he experiences pain related to his ulcer and that he must take daily medication to manage symptoms, and thus that he is entitled to a compensable rating. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, 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 applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an initial-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran’s duodenal ulcer is rated under Diagnostic Code (DC) 7305. Under this DC, a 10 percent rating is assigned where the disability is mild, with recurring symptoms once or twice yearly. A 20 percent rating is assigned where the disability is moderate, 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 rating is assigned where the disability is moderately severe, which is 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 60 percent (maximum) rating is assigned when the disability is severe 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. 38 C.F.R. § 4.114. The words “mild,” “moderate,” and “severe” as used in the various DCs 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was hospitalized for a perforated duodenal ulcer for five days in January 2014. In February 2014, the Veteran filed his informal claim for service connection with the VA. Although the effective date of the Veteran’s benefits cannot predate the Veteran’s claim for benefits, as noted above, the history of the Veteran’s condition immediately prior to filing is relevant to evaluating his disability picture as a whole. Prior to being discharged from the hospital, the Veteran was placed on a medication to control stomach acid. In a follow-up appointment several days later, the Veteran reported he had experienced weight loss and a poor appetite since discharge. At an appointment in early February 2014, just days before the Veteran filed his claim, he reported to his surgeon that he had been experiencing sharp pain in his abdomen that “usually occurs after eating,” but that his appetite was improving. He denied nausea or vomiting. Medical evidence of record for the period after the Veteran filed his claim contains less information to support the Veteran’s contentions. April 2014 results from an endoscopy showed that the Veteran had inflammation present in his stomach, but did not have H.Pylori bacterium present. An August 2014 appointment note indicated that the Veteran should continue taking his stomach acid medication, but stated that he was not experiencing constipation, diarrhea or weight loss. Few other VA treatment records contained any discussion of the Veteran’s ulcer beyond noting that it exists. Notes from May, July, and November 2015 indicate that the Veteran stated he had no recent or current symptoms associated with his ulcer. In his November 2015 Notice of Disagreement (NOD), the Veteran indicated that the VA had made a mistake in assigning his evaluation because the zero percent rating does not consider his “functional loss due to pain on movement, as required by 38 C.F.R. § 4.40. Nor does the 0% rating consider the effect of the treating medicine.” In relation to the first contention, the Board notes that application of 38 C.F.R. § 4.40 applies to functional loss due to pain on movement of the musculoskeletal system, not a disability such as an ulcer. However, even assuming § 4.40 did apply, it would be unnecessary in this context. In reading the Veteran’s statement sympathetically, it appears he is asserting that he continues to experience pain related to his ulcer. To the extent that is the case, such pain is a symptom that is contemplated by, and can be properly rated under, DC 7305. Further, the Veteran did not elaborate on his contention to explain what form of functional loss he experiences, and no functional loss was otherwise presented in the record. Thus, the Veteran’s pain would not be compensable under § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). It is proper, and more beneficial to the Veteran, to apply DC 7305 in this context. The Board finds that the Veteran is competent to report that he experiences ongoing pain. Although the Veteran denied having any “current” or “recent” symptoms associated with his ulcer on several occasions, the Board notes that the rating criteria under DC 7305 specifically contemplate that symptoms may recur only “once or twice a year.” Thus, mild symptoms in particular could reasonably be compensable but still not occur at a time that the Veteran is being evaluated by a physician. Additionally, the VA treatment records from February through August 2014 provide some support for the Veteran’s assertion that he continues to experience pain, as does the fact that the Veteran has continued to take medication throughout the period on appeal. In making this determination, the Board acknowledges a March 2015 C&P examination that indicated that the Veteran used “continuous medication” for his ulcer, but had no signs or symptoms associated with his ulcer. While the effects of ulcer therapy, which presumably include medication, are considered in the 60 percent diagnostic criteria for a duodenal ulcer, the 10 percent rating criteria does not direct the Board to consider relief from those symptoms afforded by medication. See DC 7305; Jones v. Shinseki, 26 Vet. App. 56, 62 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). Therefore, the Board will grant a higher, 10 percent rating, on the basis that the Veteran’s symptoms are mild when not relieved by medication and due to the Veteran’s description of experiencing pain associated with his ulcer. The criteria for a 20 percent rating, or higher, are not met because the medical evidence of record shows that the Veteran consistently reported being asymptomatic at medical appointments, symptoms appear to be well controlled by medication, and the Veteran has not asserted the existence of any more severe or frequent symptoms than already discussed. Even considering the ameliorative effects of medication, the Board does not find that the Veteran’s symptoms were moderate at any time during the appeal. A June 2015 treatment record noted that the Veteran had been off his medication for a month and that his complaints of hoarseness was likely secondary to gastrointestinal issues. As this period during which he was not taking medication did not demonstrate moderate (or even more severe) symptoms, the Board finds that a 20 percent rating or higher is not warranted, even with consideration of the ameliorative effects of medication. The Board acknowledges that the Veteran reported a 25-pound unintentional weight loss between August and October 2015 on preoperative anesthesia evaluations dated September 2015 and March 2016. Although weight loss is noted as one of the symptoms in the 40 and 60 percent rating criteria, the Veteran’s weight loss in this case does not warrant a higher rating for several reasons. First, nothing in the record suggests that the weight loss is attributable to the Veteran’s ulcer. As noted above, medical records in July 2015 (one month before the weight loss began) and November 2015 (one month after the weight loss stabilized) stated that the Veteran’s ulcer was currently asymptomatic. Additionally, the Veteran had medical treatment between August and October 2015. Though he did not complain of symptoms related to his ulcer during that time, he was receiving follow-up treatment for a stroke and treatment for lesions on his vocal cords. Second, the rating criteria for the 40 and 60 percent criteria require additional symptomatology that is not shown in the Veteran’s medical record, and which the Veteran does not assert he experienced. The 40 percent criteria, as it relates to weight loss, requires that impairment of health be manifested by both anemia and weight loss. The Veteran did not have anemia noted in his medical records, other than at the time of his January 2014 hospitalization. Indeed, the September 2015 preoperative evaluation states the Veteran did not have anemia. The 60 percent criteria, which builds upon the 40 percent criteria, requires anemia and additional symptoms, one of which is pain only partially relieved by standard ulcer therapy. While the Board found above that the Veteran experiences some pain despite continuous treatment with stomach acid medication, the Board finds that the symptoms are not suggestive of “definite impairment of health” given the repeated denial of current symptoms throughout the medical record. Thus, based on the foregoing, the Board finds that the Veteran is entitled to a 10 percent rating, and no higher, for service-connected duodenal ulcer for the period on appeal. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel