Citation Nr: 18106913 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 10-45 232 DATE: June 1, 2018 ORDER Entitlement to a rating in excess of 10 percent disabling for duodenal ulcer, is denied. FINDING OF FACT Entitlement to a rating in excess of 10 percent disabling for a duodenal ulcer. CONCLUSION OF LAW The criteria for entitlement to an increased rating for duodenal ulcer have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.110, 4.114, Diagnostic Code 7305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to July 1966. This matter come before the Board of Veterans’ Appeals (Board) on appeal from December 2008 rating decision(s) from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2015, the Board remanded this matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeals have since returned to the Board. The Board finds there was substantial compliance with the prior March 2015 remand. In that remand, the AOJ was directed to obtain additional VA medical records. The RO obtained the VA medical records since 2015. The Board instructed the AOJ to provide the Veteran with a VA examination to determine the current severity of his service-connected duodenal ulcer. This was completed in March 2018. Accordingly, the Board finds that the AOJ has substantially complied with the instructions of the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where there was substantial compliance with the Board’s remand instructions). 1. Entitlement to an increased rating for a duodenal ulcer Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s ulcers are rated under Diagnostic Code 7305, at 10 percent disabling. Under this Diagnostic Code, 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 (2017). The words “slight,” “moderate,” and “severe” as used in the various Diagnostic Codes 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 (2017). 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 an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). The Veteran’s VA treatment records note his continued complaints of stomach pain and stomach problems. Notably, the VA treatment records associated with the claims file show the Veteran has variously manifested symptoms of anemia, weight loss, and fatigue, although it is not clear if those symptoms are associated with the Veteran’s service-connected duodenal ulcer or non-service-connected disability. In July 2015, the Veteran received a VA examination. The VA examiner evaluated and addressed the Veteran’s gastrointestinal symptoms of abdominal and left upper quadrant pain, acid reflux, difficulty swallowing and nausea, which he stated did not have any correlation to the duodenal ulcer. While the examiner noted there was no evidence of an active duodenal ulcer, he did not address whether the Veteran experienced any residual symptoms associated with his ulcer. As such the Board found the examination inadequate. The Veteran was afforded another VA examination in March 2018. The examiner noted the Veteran’s history of an acute infection with H. Pylori treated in 1999 with resolution as evident by his negative biopsy in 2014 and 2017. The examiner also noted the Veteran takes medication (omeprazole daily) to treat his esophagitis and gastritis. The examination showed the Veteran does not have any evidence of an active duodenal ulcer on either direct visualization or imaging. Treatment records showed the Veteran’s history of a doudenal ulcer resolved without residuals. The examiner noted that the Veteran did have mild anemia, weight loss, hematemesis, or melena based on VA treatment records that show evidence of anemia and reports of fatigue, but weight charts in CPRS did not show weight loss. However, the examiner noted the Veteran has several non-service comorbid conditions, like his history of lymphoma and hypothyroidism, that would more accurately explain these signs and symptoms. The examiner noted the Veteran’s secure message to his primary care provider that stated, “Yes, there is a new lymphoma of a different sort.” Anemia and fatigue are more likely than not a consequence of a past or recurrence of a blood malignancy. The examiner found the Veteran’s records did not show any causal relationship between a remote doudenal ulcer diagnosed during his service time in the 1960s and any diagnosis of H. Pylori treated with resolution of condition, esophagitis, and gastritis years later. The examiner concluded the Veteran’s doudenal ulcer and H. Pylori resolved without sequela. The Board concludes the Veteran’s disability does not warrant a rating higher than 10 percent disabling. The Board notes the evidence of record does not suggest the Veteran’s anemia or weight loss are a result of his ulcer condition. Additionally, the record is negative for any recurring incapacitating episodes averaging 10 days or more in duration at least four or more times a year. The Board finds the Veteran’s disability picture is best captured by a 10 percent rating as his disability manifests as mild. The Board notes that, in reaching the above-noted determinations, the lay statements of record have been considered. However, the Board finds that the lay assertions made in support of his claim for a higher rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran’s disability. See 38 C.F.R. § 3.159 (a) (1). Although the Board is sympathetic to the Veteran’s claim, taking all of the relevant evidence of record into account, the above assigned ratings are reflective of his disability throughout the appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. Therefore, the Board finds entitlement to a rating in excess of 10 percent disabling is denied. See 38 C.F.R. § 4.114 (2017). The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel