Citation Nr: 19149046 Decision Date: 06/24/19 Archive Date: 06/24/19 DOCKET NO. 14-02 974 DATE: June 24, 2019 ORDER Entitlement to service connection for a respiratory condition, to include asbestosis, chronic obstructive pulmonary disease (COPD), and chronic bronchitis, is denied. The reduction of the Veteran’s rating for duodenal ulcer, to include gastroesophageal reflux disease (GERD), from 30 percent to 20 percent, effective July 1, 2013, was proper. Entitlement to a rating in excess of 20 percent for duodenal ulcer, to include GERD, is denied. FINDINGS OF FACT 1. The Veteran’s chronic respiratory condition, to include asbestosis, chronic obstructive pulmonary disease (COPD), and chronic bronchitis, is not related to service. 2. The November 1999 assignment of a separate rating for GERD was a clear and unmistakable error; in November 2012, the Veteran was provided with notice that the assignment of a separate rating for GERD would be terminated and combined with the rating for duodenal ulcer; and in April 2013, the separate rating assignment was terminated. 3. Throughout the entire rating period on appeal, duodenal ulcer, to include GERD, was not productive of a moderately severe picture; and objective findings do not include impairment of health manifested by weight loss or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more time a year. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a chronic respiratory condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The reduction in the rating for duodenal ulcer, to include GERD, from 30 percent to 20 percent, effective July 1, 2013, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 3.105, 4.114, Diagnostic Code (DC) 7305-7346. 3. The criteria for a rating in excess of 20 percent for duodenal ulcer are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.113, 4.114, DC 7305-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1961 to August 1964. This matter is on appeal from a November 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in July 2018, when they were remanded for further development. 1. Service Connection for a Chronic Respiratory Condition The Veteran contends that his chronic respiratory condition is related to exposure to asbestos in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 38 U.S.C. § 1154(a) requires VA to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). When analyzing a Veteran’s claim for service connection for an asbestos related disability, the United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the Veteran’s claim under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). There is no specific statutory guidance with regard to asbestos-related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (Manual), provides information concerning claims for service connection for disabilities resulting from asbestos exposure. Although VA manuals like the M21-1 may not in all cases be binding on an agency, Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017), the Board is not free to simply ignore the Secretary’s guidance on an issue. See 38 C.F.R. § 19.5 (“In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs.”). However, the U.S. Court of Appeals for Veterans Claims (Court) has held that “the Board is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Court added that the Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision. Id. The Board finds that the M21-1 provisions regarding asbestos exposure provide an accurate guideline for assisting the Board in adjudicating this appeal. In this regard, the Board notes that the history of VA looking at the effects of exposure to asbestos is long. The Court has looked at the asbestos issue, to include VA’s manual and circular, going back over 20 years. In Dyment v. West, 13 Vet. App. 141, 146-47 (1999), the Court found that neither the M21-1 nor a prior VA circular created a presumption of exposure to asbestos solely from shipboard service. Rather, the Court determined that they are guidelines which serve to inform and educate adjudicators as to the probability of exposure to asbestos and the prevalence of disease found in insulation and shipyard workers. The provisions direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. Id. Additionally, the Board notes that VA likely developed these guidelines to inform adjudicators by consulting experts in the appropriate field(s) and with other Departments, such as the Department of Defense. In light of the foregoing factors, the Board will utilize the M21-1 as an accurate guideline in adjudicating this appeal along with the applicable laws, regulations, caselaw, and opinions from VA’s Office of General Counsel. The M21-1 defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection 2(a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection 2(a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection 2(f). Asbestos fiber masses tend to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection 2(b). The latency period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. at Subsection 2(d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection 2(h). In Dyment, 13 Vet. App. at 145, the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOGC Prec. Op. No. 04-00 (Apr. 13, 2000). In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). Service connection may be granted on this basis for a disability related to asbestos exposure in service, if the evidence of record demonstrates that the veteran was actually exposed in-service and that a disease that is associated with such exposure has resulted. However, the exposure to asbestos itself is not a clinical disability. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Rather, the asbestos exposure must cause the development of a disability. The record reflects the Veteran has a current diagnosis of chronic bronchitis, as shown in a September 2012 VA examination; thus, the first element of service connection is satisfied. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Regarding whether the Veteran was exposed to asbestos in service, the Veteran stated in an October 2011 VA Form 21-4138, Statement in Support of Claim, that he was exposed to asbestos during a three-month period while aboard the U.S.S. Hartley. He stated that while he was stationed aboard asbestos stripping and replacement was ongoing around him. He saw asbestos debris and airborne particles and was not issued a mask or protective gear. The Veteran’s DD-214 notes his military occupational specialty (MOS) as Seaman, and he has also provided statements indicating that he was a Quartermaster. Both occupations are identified as having a minimal probability of asbestos exposure. See M21-1MR, Part IV, Subpart ii, Chapter 1, Section I.3.d. The Veteran nonetheless contends that being on the Hartley when asbestos removal was being completed caused exposure. A Dictionary of American Naval Fighting Ships history of the Hartley reflects that it entered the Boston Naval shipyard in September 1963 for an overhaul and modification. The Veteran’s service personnel records reflect that he was stationed aboard the Hartley from November 1962 to August 1964. A December 2012 statement from the Veteran’s supervisor on the Hartley notes his memory of being in dry dock for overhaul and installation services in 1963 into 1964. He remembered that some of the ship’s crew remained living onboard during this time completing routine work. He indicated that shipyard workers were throughout the ship, including in living compartments, changing, removing, and replacing various equipment and parts and that dust and old insulation had to be shaken off bedding and cleaned off of compartment decks on a daily basis. He recalled trash being removed in open containers, but did not recall any precautions being taken or ventilation changed. He indicated his awareness that two of his crew members had problems with asbestos-related diseases and had died from mesothelioma. As noted above, service connection requires competent evidence showing a nexus, or link, between the current disability and an in-service disease, injury, or event. For reasons to be discussed below, the Board finds that it is not necessary to determine whether in-service exposure to asbestos occurred, as the evidence preponderates against a nexus between the current condition and any in-service event. The Veteran was provided with a VA examination in September 2012 in which the examiner, Dr. J.D., opined that the Veteran did not have asbestosis. The examiner noted that the Veteran’s diffusing capacity of the lungs for carbon monoxide (DLCO) was mildly reduced but that, without evidence of interstitial fibrosis or calcified pleural plaquing on X-ray or CT, the reduced DLCO was most likely due to the Veteran’s smoking history. The examiner stated that the imaging studies simply “[did] not show that he has asbestosis.” The examiner noted the Veteran’s self-reported history as a former smoker and noted that the Veteran was morbidly obese and that this affected his breathing. As discussed above, the examiner stated that the Veteran’s exposure to asbestos was minimal due to the Veteran’s military personnel records; however, as noted above, the Veteran contends that he was in fact exposed to asbestos despite the generally minimal likelihood of exposure for servicemembers with his MOS. As such, the Board assigns a low degree of probative value to the September 2012 opinion by Dr. J.D. The Veteran was provided with an additional VA examination in April 2019 in which the examiner, Dr. K.C., also opined that the Veteran’s condition was less likely than not incurred in or caused by service. The examiner considered the Veteran’s service treatment records and the lay statements in support of the claim. The examiner also considered the Veteran’s contention that he has not smoked since 1969 and that he was “not obese at six feet tall and 290 pounds.” The examiner noted the Body Mass Index (BMI) and the formula used to calculate clinical obesity, and indicated that the Veteran’s BMI was 39.3 and would be considered obese by the BMI ranges. Further, the examiner noted “[v]arious smoking histories” in the medical records indicating that the Veteran continued to smoke a pipe for many decades after 1969 and that a medical provider in 2008 had equated his pipe smoking to a 30-pack-year cigarette smoking history. The examiner also noted that evidence in the record indicated the Veteran had continued to smoke a pipe as recently as 2016. The examiner stated that medical literature did not support the Veteran’s “impression that pipe smoking is not ‘smoking’ and does not confer similar health risks.” After reviewing the Veteran’s history, Dr. K.C. stated that the Veteran has multiple small pulmonary nodules which are consistent with post-inflammatory changes typically caused by infection with various fungal organism ubiquitous in the environment, which are described as such on imaging interpretations. The examiner stated that this was not a typical finding of asbestos exposure nor a typical residual of bronchopneumonia or URI as described in the service treatment records and that their appearance 40 years after those conditions is not consistent with a relationship. The examiner explained that decline in lung function and development of COPD/emphysema-like lung changes begins at a young age and progresses in a straight-line decline over time, even in healthy individuals. He indicated that the changes are accelerated from exposure to tobacco smoke and that cigarette and pipe smoking are “well accepted as pivotal factors in this decline.” He indicated that even with cessation of smoking, the lungs do not return to normal, but merely resume the rate of normal decline in function with aging. He explained that single episodes of bronchopneumonia noted in the service treatment records do not contribute significantly to lung disease or decline. Further, the examiner noted that tobacco smoke’s effects on lung function is permanent and additive to normal lung decline and that his respiratory condition was most likely due to the long-term exposure to tobacco smoke. In addition, Dr. K.C. noted that multiple radiographic examinations failed to demonstrate findings associated with asbestos lung disease, asbestosis, or asbestos exposure. He opined that it “may be definitively stated” that the Veteran’s current lung conditions are most likely common and well accepted residuals of infection with widespread and ubiquitous soil fungi (granulomas) and long-term tobacco abuse. As Dr. K.C.’s opinion reflects thorough consideration of the Veteran’s history, his current condition, and pertinent medical tests and literature, the Board assigns a high value of probative value to the April 2019 opinion. In sum, the Board finds that the evidence of record preponderates against a finding that the Veteran’s respiratory condition is related to service, to include any asbestos exposure. In reaching this conclusion, the Board considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Rating Reduction for Duodenal Ulcer, to Include Gastroesophageal Reflux Disease (GERD) The Veteran contends that the reduction of his rating for duodenal ulcer, to include gastroesophageal reflux disease (GERD), from 30 percent to 20 percent, was improper. A November 1999 rating decision awarded service connection for GERD and assigned a 10 percent rating under Diagnostic Code (DC) 7346, effective April 20, 1999. This assignment was separately made from the rating for the Veteran’s duodenal ulcer that was rated as 20 percent disabling under DC 7305, effective since January 1972. This issue on appeal relates to an action taken by the RO in which the Veteran’s separate evaluation for GERD was discontinued and combined with his rating for duodenal ulcer, which ultimately resulted in a reduction in his evaluation from a combined 30 percent rating to a single 20 percent rating for both conditions. As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. §§ 3.105(e); 3.500(r). Initially, the Board notes that at the time of the April 2013 decision that implemented the combination and ultimate reduction of the rating to 20 percent, the 10 percent rating for GERD had been in effect for 14 years; as such, the GERD rating was not protected under 38 C.F.R. § 3.951(b), and reduction was available under the provisions of § 3.105. The Board also notes that the April 2013 rating decision indicated that service connection for GERD was being severed; however, as explained in the December 2015 statement of the case, this was an inaccurate characterization of the action that was taken by the Regional Office. The record reflects that service connection for GERD was not severed; rather, the rating for the condition was combined with the rating for the duodenal ulcer, which ultimately resulted in a reduction of the overall evaluation of the condition. In this case, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were properly carried out. In a November 2012 rating decision, the RO determined that a clear and unmistakable error was committed by a November 1999 rating decision that granted a separate evaluation for gastroesophageal reflux disease and that, to correct this error, the condition would be combined with the duodenal ulcer under a single evaluation. In December 2012, the Veteran responded to the proposed reduction in a VA Form 21-4138, Statement in Support of Claim, and did not request a hearing. In an April 2013 rating decision, the RO terminated the separate rating for gastroesophageal reflux disease effective July 1, 2013 and combined the condition with the duodenal ulcer under a single evaluation. Further, the Board finds that the November 1999 rating decision’s assignment of a separate rating for gastroesophageal reflux disease was clearly and unmistakably erroneous and that the reduction was proper. A clear and unmistakable error is “a very specific and rare kind of error.” “It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” “Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.” Yates v. West, 213 F.3d 1372, 1375 (Fed. Cir. 2000) (internal citation omitted). Section 4.113 of 38 C.F.R. provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Section 4.114 provides that ratings under DC 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 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. Thus, the November 1999 decision that assigned two separate ratings under DCs 7305 and 7346 contained a clear and unmistakable error as it misapplied the regulatory provisions extant at the time for evaluating conditions of the digestive system. The separate ratings that were assigned by the November 1999 rating decision violated the rule against pyramiding in § 4.14 as specifically delineated in §§ 4.113 and 4.114. The Veteran essentially contends that the conditions are medically distinct and therefore should not be combined. In a December 2012 VA Form 21-4138, Statement in Support of Claim, the Veteran explained that he consulted with medical professionals who have told him that the two conditions “ha[ve] little if anything to do with the other.” The Veteran thereafter discussed the differing nature and etiology of the conditions. The Board acknowledges the Veteran’s contentions; however, VA is bound by the provisions of 38 C.F.R. §§ 4.14, 4.113, and 4.114, which prohibit pyramiding and the assignment of separate evaluations for certain digestive system conditions, including conditions evaluated under DCs 7305 and 7346, as the Veteran’s conditions have been. In sum, the Board finds that the assignment of a separate evaluation for GERD in the November 1999 rating decision was a clear and unmistakable error, and the RO satisfied all necessary procedural steps in order to remedy the error. Accordingly, the reduction of the rating for duodenal ulcer, to include GERD, from 30 percent to 20 percent, was proper. 3. Increased Rating for Duodenal Ulcer, to Include Gastroesophageal Disease The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected duodenal ulcer, to include gastroesophageal disease. The Veteran has been assigned a 20 percent rating for duodenal ulcer under Diagnostic Code (DC) 7305 since January 1972. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants elevation. 38 C.F.R. § 4.114. As discussed above, this condition is rated under a single evaluation for hyphenated DC 7346-7305. Under Diagnostic Code 7305, a 10 percent rating is assigned for mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent rating is assigned for moderate duodenal ulcer 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 for moderately severe duodenal ulcer that 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 rating is assigned for severe duodenal ulcer 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, DC 7305. The terms “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. 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. The use of terminology such as “moderate” or “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. The Board notes, for reference and illustrative purposes, that the definitions for “mild” include not very severe. WEBSTER’S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id. at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” Under DC 7346, a 30 percent rating is warranted where 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 rating is warranted where 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. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that “[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication . . . the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication.” As can be seen in the above description of DC 7346, there is not an explicit statement indicating how the Board should treat the ameliorative effects of medication on the Veteran’s GERD. Thus, pursuant to Jones, the Board may not deny entitlement to a higher disability rating based on the fact that the Veteran’s use of medication lessens his symptoms of GERD. Accordingly, the Board must determine what the Veteran’s GERD symptoms would be, absent his use of medication. On the other hand, DC 7305 does consider use of medication as part of the rating criteria; therefore, Jones is inapplicable to that DC. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). In this case, August 2012 VA treatment records reflect that the Veteran underwent blood testing for various disorders, to include anemia, and the results were normal. November 2012 VA treatment records reflect the Veteran had lost 20 pounds and had been experiencing nausea, fatigue, and a lack of appetite. The Veteran reported no vomiting, diarrhea, or chest pain. He indicated symptoms had been ongoing for a month. A subsequent November 2012 endoscopy reflects a post-procedure diagnosis of hiatal hernia and a grossly unremarkable upper endoscopy. In May 2015, the Veteran was provided with a VA examination for GERD and hiatal hernia. The Veteran reported that he does not experience heartburn when he takes Omeprazole. He reported an incident involving heartburn one evening about a month previously after not taking this medication. The examiner indicated the Veteran did not have any signs or symptoms due to an esophageal condition. July 2015 VA treatment records note 9 pounds of weight loss and worsening fatigue and malaise. August 2015 VA treatment records note that his red blood cell concentration was low, which indicated some anemia. November 2015 VA treatment records note hemoptysis which was resolving and a stable complete blood cell (CBC) count. The doctor noted CBC with mild, microcytic anemia stable from 4 days prior with no leukocytosis. In addition, the doctor noted a history of present illness of chest pain and hematemesis with a chronic productive cough. Subsequent to the July 2018 remand, the Veteran was provided with another VA examination in April 2019. The examiner noted that the Veteran reported that he did not believe he had experienced any symptoms attributable to duodenal ulcer since being hospitalized in service in 1963. The examiner stated that he did not elicit statement of incapacitating episodes of any kind. The Veteran reported that he did not have any symptoms of GERD since he started Omeprazole in 1999. With regard to the symptom of hematemesis, the Veteran did not recall vomiting blood since his hospitalization for duodenal ulcer during active service, and no hematemesis was reported during examination. Regarding any symptoms of shoulder pain, the Veteran reported that he had broken his left upper arm and had residual edema and pain in the left shoulder and that right shoulder pain was due to arthritis. The examiner concurred with these reports and found that any shoulder pain was unrelated to the GERD condition. Regarding weight loss, the Veteran reported that his weight has generally been between 260 and 290 since service. He has tried diets to lose weight, but has not found any effective weight loss regimen. The examiner indicated there was no weight loss shown on examination. The examiner noted the prescription of Omeprazole. The examiner noted no signs or symptoms due to any esophageal conditions, to include GERD. The examiner stated that the Veteran currently had no signs or symptoms of GERD or duodenal ulcer and denied such for many years due to effective treatment with daily Omeprazole. Other signs and symptoms that were not found on current examination were recurring episodes of symptoms that are not severe, recurring episodes of severe symptoms, abdominal pain, anemia, weight loss, nausea, vomiting, melena, and hematemesis. The Veteran stated that, prior to Omeprazole treatment, he experienced persistent heartburn which would cause sleep disturbance four or more times a year lasting one day or less each episode. The examiner indicated that he did not elicit duodenal ulcer symptoms either prior to or after initiating Omeprazole treatment. After review of the evidence of record, the Board finds that the severity of the symptoms and disability picture of the Veteran’s duodenal ulcer, to include GERD, does not warrant a rating in excess of 20 percent. The evidence does not more nearly approximate a rating of 40 percent under DC 7305 as the Veteran has at no time during the appeal period had recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. In addition, while some weight loss and anemia has been noted, the Veteran’s weight has remained generally between 260 and 290 pounds, and no weight loss was found on examination in April 2019. The anemia was noted to be mild. Additionally, the weight loss and anemia have not been shown to result in impairment of health. The Board has also considered whether the Veteran would be entitled to a higher rating under DC 7346 for GERD as the predominant disability. The evidence indicates that the Veteran takes medication for GERD and that he does not experience persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The April 2019 VA examiner indicated that the Veteran’s shoulder pain was attributable to disabilities other than GERD. The Veteran reported that prior to taking Omeprazole he would experience heartburn that caused sleep disturbances four or more times a year that would last one day or less per episode. As such, the Veteran indicated that symptoms prior to when he began taking medication did not cause symptoms that would cause considerable impairment of health. In light of these statements, the Board finds that the evidence provides an accurate representation of the Veteran’s disability picture without the ameliorative effects of medication, in that symptoms would not cause considerable impairment of health. Jones, 26 Vet. App. at 62. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the claimant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369−70 (2017). In sum, the Board finds that a preponderance of the evidence is against a finding that the Veteran’s duodenal ulcer, to include GERD, more nearly approximates the criteria for a rating in excess of 20 percent. As a preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, 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.