Citation Nr: 19137331 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 18-49 280 DATE: May 14, 2019 ORDER Entitlement to a disability rating in excess of 20 percent for duodenal ulcer is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran’s duodenal ulcer is moderately severe, defined as 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. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for duodenal ulcer have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code 7305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. 1. Entitlement to an Increased Rating for Duodenal Ulcer Increased Ratings – General Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Analysis The Veteran seeks a higher rating for his service-connected duodenal ulcer. The Veteran’s service-connected duodenal ulcer is rated as 20 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7305. The Veteran’s increased rating claim was received on June 20, 2017. Therefore, the relevant rating period is from June 21, 2016, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). Under Diagnostic Code 7305, a 20 percent rating is warranted for moderate duodenal ulcer, manifested by 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 warranted for moderately severe duodenal ulcer, defined as 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 maximum schedular rating of 60 percent is warranted for severe duodenal ulcer, with symptoms consisting of pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, and manifestations of anemia and weight loss productive of definite impairment of health Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to ensure that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 38 C.F.R. § 4.114. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Turning to the relevant evidence of record, the Veteran was provided a VA examination in July 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported he has “vomiting,” described as regurgitation, fifteen to twenty minutes after meals. The Veteran further reported abdominal pain with burning two or three times a week. Additionally, the Veteran’s treatment plan includes taking continuous medication for his service-connected duodenal ulcer. Upon examination, the VA examiner noted the Veteran had recurring episodes of symptoms that are not severe, four or more times per year that last less than one day. The Veteran reported continuous abdominal pain that is only partially relieved by standard ulcer therapy. The Veteran further reported periodic nausea and vomiting that occur four or more times per year. The Veteran did not report any incapacitating episodes or other conditions related to his duodenal ulcer. An April 2018 private examination report reflects that the Veteran complained of constant nausea and gagging, abdominal burning, random spitting up blood, abdominal pain and associated reflux. The Veteran was provided a VA examination in June 2018. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he easily gets full followed by vomiting. He also reported blood in his stool and that he usually weighs between 195-197 pounds. The Veteran denied weakness or fatigue. The VA examiner noted that the Veteran has recurring episodes of symptoms that are not severe that occur four or more times per year and last less than one day. The Veteran reported abdominal pain that occurs at least monthly and recurrent vomiting that occurs four or more times per year for less than one day. The Veteran further reported four or more episodes per year of recurrent hematemesis and recurrent melena that last less than one day per episode. The Veteran did not report any incapacitating episodes or other conditions related to his service-connected duodenal ulcer. The VA examiner reported that the Veteran’s duodenal ulcer does not impact his ability to work. Having reviewed the complete record, the Board finds that the evidence does not support the criteria for a disability rating in excess of 20 percent during the period on appeal for duodenal ulcer under Diagnostic Code 7305. The record shows that the Veteran’s duodenal ulcer has been manifested by non-severe recurrent episodes of symptoms of abdominal pain, vomiting, nausea, hematemesis, and melena. There is no showing, however, of moderately severe duodenal ulcer, defined as less than severe but with impairment of health manifested by anemia and weight loss. The Board also notes that recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year are not shown. In light of the lack of evidence demonstrating any incapacitating episodes for his duodenal ulcer, the Board finds that the criteria for a rating of 40 percent for duodenal ulcer on this basis are also not met. In light of the above, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 20 percent disabling for duodenal ulcer. Moreover, the Veteran has not reported other symptoms not contemplated by these rating criteria. Accordingly, the claim for a rating higher than 20 percent disabling for duodenal ulcer is denied. In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature and severity of his service-connected duodenal ulcer at issue and notes that his lay testimony is competent to describe certain symptoms associated with this disability that are capable of lay observation. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran’s statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Veteran has not been shown to have medical knowledge in this regard. The Board therefore finds that the criteria for a rating in excess of 20 percent for the Veteran’s service-connected duodenal ulcer have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran’s duodenal ulcer pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.