Citation Nr: 18160152 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-46 257 DATE: December 26, 2018 ORDER Entitlement to a rating in excess of 40 percent for peptic ulcer, status post partial gastrectomy, is denied. FINDING OF FACT Throughout the appeal, the peptic ulcer, status post partial gastrectomy, disability has been manifested at worst by anemia, occasional nausea and vomiting without weight loss, a one-year period of dysphagia without weight loss, and a brief period of fatigue. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for peptic ulcer, status post partial gastrectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.114, Diagnostic Code 7308 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1954 to March 1958 and from May 1958 to December 1960. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision. In November 2017, the Board remanded the appeal for additional development. Entitlement to a rating in excess of 40 percent for peptic ulcer, status post partial gastrectomy The Veteran’s peptic (duodenal) ulcer, status post partial gastrectomy, is rated 40 percent disabling pursuant to Diagnostic Code 7308, which pertains to postgastrectomy syndrome. Under those rating criteria, a 40 percent rating is warranted for moderate disability with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating is warranted for severe disability associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114, Diagnostic Code 7308. He believes a higher, 60 percent rating is warranted. He also has a service-connected surgical scar associated with his partial gastrectomy for his peptic ulcer, which is not an issue on appeal. In support of his October 2014 claim for an increased rating, the Veteran asserted that his ulcer disability caused daily weakness because he was unable to digest food properly and to “attain the proper nutrition from the food intake.” He described daily constipation and stomach discomfort and stated he had been hospitalized several times in the last couple years due to his disability. He submitted private treatment records in support of his contentions. Those records show he underwent same-day procedures, including esophagogastroduodenoscopy (EGD) and colonoscopy studies, at a hospital twice in July 2012 and once in August 2014. Each colonoscopy study was incomplete due to “poor colon prep.” The Veteran was admitted to a different private hospital in May 2013 due to symptoms associated with urinary tract infection, acute kidney injury, and chronic kidney disease. None of the records demonstrated hospitalization for his ulcer disability, status post partial gastrectomy, other than the records of same-day procedures. An August 2014 treatment record documented iron-deficiency anemia with a hemoglobin level of 14 g/dL. The Veteran was afforded a VA examination in December 2014. He reported having constipation if he eats the wrong food. The examiner noted the Veteran had anemia due to his duodenal ulcer disability, but explained that the Veteran did not complete the CBC testing scheduled for the same day. Therefore, specific hemoglobin/hematocrit results were not reported. His weight was recorded as 166 pounds. He did not have other signs or symptoms due to his ulcer disability status post partial gastrectomy, including abdominal pain, weight loss, nausea, vomiting, diarrhea, hematemesis, melena, episodes of epigastric distress, circulatory symptoms or disturbance, hypoglycemic symptoms, or malnutrition. He denied having incapacitating episodes. The examiner commented that the Veteran’s duodenal ulcer status post partial gastrectomy did not impact his ability to work. During a VA primary care visit a few days later in December 2014, the Veteran denied any abdominal pain, nausea or vomiting, or change in bowel habits during a review of gastrointestinal symptoms. His weight was recorded as 170 pounds. With his substantive appeal received in September 2016, the Veteran expressed his belief that a 60 percent disability was warranted, stating that he had been experiencing symptoms of the 60 percent rating criteria, including “nausea, sweating, circulatory disturbances after meals, etc.…since before [he] even claimed stomach discomfort as a condition.” He stated he was “unable to keep down” his food and vomits, causing him to lose weight because of malnutrition. He added that he had been “seeing a private physician who will provide me with medical evidence to support my contention.” In October 2016, the Veteran submitted a September 2016 treatment record from his private endocrinologist, J. Rubin, M.D. His chief complaint was documented as “confusion” and the history of his present illness was reported as “doing okay.” The note details the Veteran’s report that he had had ulcer surgery in 1957 and had since developed nausea and vomiting and occasionally stopped eating. Dr. Rubin noted, “This has led to hypoglycemia.” His weight was recorded as 174 pounds. The assessment was stable diabetes; monitor nausea and vomiting. Other VA and private treatment records dated from December 2014 to October 2017 document the Veteran denied episodes of hypoglycemia and none were shown in the records throughout the appeal period. In fact, private treatment records from February 2017 to October 2017 documented “markedly high glucose levels” or hyperglycemia with slight improvement in glycemic control during that time period. He continued to take iron supplements for anemia. Objectively, he was observed to be well developed and well nourished. His recorded weight ranged from 173 pounds to 180 pounds by October 2017. In addition, from December 2014 to October 2017, the Veteran consistently denied abdominal pain, nausea (with one possible exception), vomiting, diarrhea, constipation, bright red blood per rectum, or melena. Regarding other signs or symptoms of peptic ulcer status post partial gastrectomy, in December 2016, the Veteran endorsed a one-year history of intermittent dysphagia without weight loss that occurred once or twice weekly and current fatigue. The record of that visit indicates that he both denied and endorsed experiencing nausea. In January 2017 during a new patient visit with J. Huang, D.O., he again reported a history of dysphagia for one year. The impression of a January 2017 EGD study to assess his dysphagia was “status post gastric bypass, could have some mild eosinophilic esophagitis.” During an October 2017 private follow-up visit for diabetes management, he denied any fatigue, weakness, dysphagia, nausea, vomiting, diarrhea, or constipation. Reported examination findings included well-nourished, well-developed appearance; normal strength; and hemoglobin level recorded as 12.8 g/dL. The Veteran was afforded a VA fee-basis examination in January 2018. He reported that since undergoing a partial gastrectomy for his peptic ulcer, his symptoms had gotten better. However, he still had occasional nausea and vomiting, estimating he experienced each four or more times per year for an average duration of ten days or more. He continued to take omeprazole to control symptoms. The examiner observed the Veteran’s hemoglobin level was recorded as 12.0 g/dL in August 2017. He did not have signs or symptoms of status post partial gastrectomy for peptic ulcer such as abdominal pain, weight loss, malnutrition, hematemesis, melena, sweating, circulatory disturbance after meals, or hypoglycemia symptoms. The examiner also indicated there were no other pertinent physical findings, complications, conditions, or signs or symptoms related to the Veteran’s disability (other than his surgical scar). Based on the examination, frequency and duration of the Veteran’s recurring episodes of symptoms, and review of the claims file, the examiner concluded the Veteran’s status post partial gastrectomy for peptic ulcer disability was not severe in nature. Having considered the medical and lay evidence of record, the Board finds a rating in excess of 40 percent for peptic ulcer, status post partial gastrectomy, is not warranted at any time during the appeal. Throughout the appeal period, the Veteran’s peptic ulcer, status post partial gastrectomy, has been manifested at worst by anemia, occasional nausea and vomiting without weight loss, a one-year period of dysphagia without weight loss, and a brief period of fatigue. These findings more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 7308, which provides a 20 percent rating based on mild disability with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. 38 C.F.R. § 4.114, Diagnostic Code 7308. In any event, a higher, 60 percent rating is not warranted because while the Veteran has had some nausea and ongoing anemia, he has not had weight loss and malnutrition accompany his anemia, as required by the rating criteria. Rather, the medical evidence of record shows the Veteran gradually gained weight since his claim was received in 2014 and has been consistently observed during the appeal period to be well-nourished and well developed. Similarly, although Dr. Rubin indicated in a September 2016 treatment record that nausea and vomiting along with the Veteran occasionally stopping eating had led to hypoglycemia, it appears to the Board that Dr. Rubin was referring to a previous history of hypoglycemic symptoms. Notably, among treatment records during the appeal period from Dr. Rubin, VA, and other private treatment providers, none documented contemporaneous hypoglycemic symptoms. Instead, the records include the Veteran’s statements denying any hypoglycemia and document a period of hyperglycemia. Therefore, the Board finds the September 2016 record from Dr. Rubin insufficient to support a higher, 60 percent rating. Finally, a higher, 60 percent rating is not warranted because although the Veteran asserted in his substantive appeal that he has experienced sweating and circulatory disturbance after meals associating with this disability, contemporaneous treatment records and those throughout the appeal period do not show complaints or findings of such symptoms. In summary, the most persuasive medical and lay evidence of record indicates the Veteran’s peptic ulcer status post partial gastrectomy has caused some nausea and vomiting, anemia, a period of dysphagia, and brief fatigue. However, it has not been manifested by sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, or weight loss with malnutrition and anemia. The Board acknowledges the December 2018 assertion by the Veteran’s representative that the January 2018 VA fee-basis examination was inadequate because it was performed by a physician assistant and not a specialist in gastroenterology and the suggestion that VA failed to comply with the November 2017 Remand directives as a result. The representative added that examiner’s “absence of competence renders his assessment no more probative than the appellant’s lay assertions that there is worsening of his condition.” The representative asked the Board to Remand the case if a higher rating is not granted. In this case, the Board finds that a remand for further development, including an additional examination, is not warranted. First, the November 2017 Remand directives instructed the AOJ to schedule the Veteran for an “appropriate examination to determine the current severity and manifestations of his disability.” The Remand did not require the examination to be conducted by a specialist. Second, other than the examination being conducted by a physician assistant, the representative did not identify any particular deficiency in the examination report or any basis for concluding the physician assistant was not competent to complete the examination. Thus, in the absence of evidence or argument to question the physician assistant’s competence, the Board is entitled to assume the competence of the VA examiner. See Cox v. Nicholson, 20 Vet. App.563, 569 (2007) (holding that VA satisfied its duty to assist in a case where a nurse practitioner performed the VA examination because a nurse practitioner is competent to provide medical evidence). Finally, the Board finds the January 2018 VA fee-basis examination is adequate to decide the claim because it included a history from the Veteran and review of the claims file, examination of the Veteran, and it was responsive to the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Based on the foregoing, the Board finds VA substantially complied with the November 2017 Remand directives and additional development is not warranted. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for a higher rating than already assigned, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel