Citation Nr: 20070003 Decision Date: 10/28/20 Archive Date: 10/28/20 DOCKET NO. 16-11 958 DATE: October 28, 2020 ORDER Entitlement to a disability rating in excess of 20 percent, for a gastric ulcer prior to December 19, 2019, is denied. Entitlement to a disability rating of 40 percent, but no higher, for a gastric ulcer from December 19, 2019, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 19, 2019, the Veteran’s gastric ulcer and residual duodenal scarring was not manifested by mild impairment with recurring symptoms once or twice yearly. 2. From December 19, 2019, the Veteran’s gastric ulcer and residual duodenal scarring has been manifested by moderately severe impairment with intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting. 3. The Veteran’s service-connected disabilities do not satisfy the schedular criteria for TDIU and extraschedular referral is not warranted. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for a gastric ulcer prior to December 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7304. The criteria for entitlement to a disability rating in excess of 20 percent for a gastric ulcer from December 19, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7306. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R.§ 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 until November 1974.This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at an August 2019 hearing before the undersigned Veterans Law Judge. A transcript of the testimony is of record. Increased Rating Disability ratings are determined by comparing the symptomatology manifested by a particular service-connected disability at issue with the criteria as set forth by the VA Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings assess the ability of the body as a whole, or a body system or organ, to function under the ordinary conditions of daily life, to include employment. See 38 C.F.R. § 4.10. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all the 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. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. However, the symptoms recited in the Rating Schedule are not intended to constitute an exhaustive list; rather, they are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). All benefit of the doubt will be resolved in the claimant's favor. See 38 C.F.R. § 4.3. That said, the Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease. Rating the same disability or its manifestations more than once, under different DCs (a practice known as pyramiding) is prohibited. See 38 C.F.R. § 4.14. A Veteran's entire history is reviewed when assigning a disability evaluation. Further, in determining the level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Correspondingly, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the period on the appeal, the assignment of staged ratings is necessary. 1. Entitlement to a disability rating in excess of 20 percent for a gastric ulcer The Veteran was granted service connection for a gastric ulcer in an April 2013 rating decision and was assigned a noncompensable rating. Following a Notice of Disagreement, the Veteran was granted a 20 percent disability evaluation, effective December 19, 2019. Under the General Rating Formula for digestive system disorders, Diagnostic Code (DC) 7304 provides the criteria for rating a gastric ulcer. Under DC 7304, a mild gastric ulcer with recurring symptoms once or twice yearly warrants a 10 percent rating. A moderate gastric ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations warrants a 20 percent rating. A 40 percent rating is assigned where there is evidence of a moderately severe gastric ulcer, or less than severe but with impairment of health manifested by anemia and weight loss, or by recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted where there is evidence of a severe gastric 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. See 38 C.F.R. § 4.114, DC 7304. Further, the rating criteria for a duodenal ulcer under DC 7305 are identical to those of DC 7304 for a gastric ulcer. 38 C.F.R. § 4.114, Code 7305. No rating in excess of 60 percent is contemplated under DC 7304 or DC 7305. Under DC 7346, a 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, regurgitation, and substernal (or arm or shoulder) pain, combinations of which are productive of a considerable impairment of health. A maximum 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptoms, combinations of which are productive of a severe impairment of health. No rating in excess of 60 percent is contemplated under DC 7346. Under DC 7306, a maximum 100 percent rating is warranted for pronounced conditions manifested by periodic or continuous pain unrelieved by standard ulcer therapy, with periodic vomiting, recurring melena or hematemesis, and weight loss, in the event the symptomatology amounts to totally incapacitating. A 60 percent rating is warranted for severe conditions manifested by the same symptomatology, where the disability amounts to a definite impairment of health but the symptoms are less pronounced and less continuous. A 40 percent rating is warranted for moderately severe conditions manifested by intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena. A 20 percent rating is warranted for moderate conditions with episodes of recurring symptoms several times a year, and a 10 percent rating is for mild conditions with brief episodes of recurring symptoms once or twice yearly. Notably, as to disabilities of the digestive system, to include hiatal hernias and gastric ulcers, duodenal ulcers, or marginal ulcers amenable to rating under DCs 7304, 7305, 7306, and 7346, ratings under these DCs cannot be combined with each other. See 38 C.F.R. § 4.114. Instead, a single rating, reflecting the predominant disability, is assigned. Therefore, the Board considers the Veteran's symptoms under all relevant DCs and assigns the higher rating as to any distinct portion of the period on the appeal when his service-connected gastric ulcer exhibited diverse symptoms meeting the criteria for different ratings. A. Prior to December 19, 2019 The record demonstrates that, prior to December 19, 2019, the Veteran’s gastric ulcer warrants a noncompensable rating. This evaluation is supported by the April 2013 VA examination that revealed mild duodenal scarring, but no ulceration and a small hiatal hernia. The examiner noted the Veteran was taking medication for dyspepsia, but did not note any recurring symptoms such as abdominal pain, anemia, weight loss, nausea, vomiting, or any incapacitating episodes that would warrant a compensable rating. A compensable rating would be warranted if the Veteran experienced mild impairment, with recurring symptoms once or twice per year. As this was not the case for this period on appeal, a noncompensable rating is warranted. The Board further observes that, as to the period prior to December 19, 2019, the Veteran would not qualify for a higher rating under any other relevant DC. For instance, for the purposes of DC 7346, he would not qualify for a compensable rating for hiatal hernia. Although the examiner noted a small hiatal hernia, that finding did not manifest as two or more of the following symptoms representing the 30 percent evaluation with less severity: persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Accordingly, the most advantageous rating available to the Veteran prior to December 19, 2019 is DC 7304, which also resulted in a noncompensable rating. B. From December 19, 2019 onward In contrast, the most favorable evaluation of the Veteran's disability after his VA examination provided on December 19, 2019, is a 40 percent rating awarded by analogy with the guidance provided in DC 7306. Specifically, the record shows that from December 19, 2019, the Veteran experienced continuous abdominal pain and transient nausea and vomiting, occurring four or more times per year with an average duration of less than one day. The Veteran stated that he experienced incapacitating episodes several times per week, where he had to go to bed for two to three hours. Accordingly, his disability is best assessed by analogy to a 40 percent disability rating under DC 7306. The examiner described the Veteran’s symptoms as moderate to severe, noting a burning sensation in the stomach, increased use of daily medications, weakness, irritation, and loss of appetite. The Veteran has not experienced any weight loss due to this disability. Under DC 7304, a 40 percent rating is warranted for moderately severe impairment. The April VA treatment records shows low hemoglobin, although the Veteran was not diagnosed with anemia. The Veteran experienced incapacitating episodes more than four times per year, however the average duration is less than one day. In forming a clear disability picture, the fact that the Veteran is incapacitated for several times per week for a few hours may reasonably equate to a comparable impairment as someone experiencing a longer duration of incapacitation with fewer total episodes. In fact, the same 40 percent disability rating is warranted under DC 7306 for moderately severe impairment manifested by intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, and mild and transient episodes of vomiting or melena. Here, the Veteran experienced near daily abdominal pain, partial relief from medication, and transient episodes of vomiting. A higher 60 percent evaluation under DC 7306 is not warranted because the Veteran has not experienced severe impairment manifested by periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss with definite impairment of health. A higher 60 percent evaluation under DC 7304 is not warranted because the Veteran has not experienced severe impairment manifested by 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. A higher 60 percent evaluation under DC 7346 is not warranted because the Veteran has not experienced 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 conclusion, the overall picture of the Veteran’s symptomatology has been most consistent with a 40 percent rating under DC 7306. See Mauerhan, 16 Vet. App. at 442. Further, no rating by analogy with any other relevant DC provides the Veteran with a more favorable evaluation of his disability during the period from December 19, 2019 onward. Accordingly, the Veteran’s claims for a compensable rating for a gastric ulcer is denied prior to December 19, 2019, and granted, but not to exceed 40 percent from December 19, 2019. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Board has considered whether the Veteran is entitled to a total disability rating based upon individual unemployability (TDIU). The issue of entitlement to a TDIU is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the August 2019 Board hearing, the Veteran stated that he had to miss work due to the symptoms he was experiencing from ulcers. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual Veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the Veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2018). In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The record contains a lay statement from the Veteran’s superintendent at Georgia Pacific. The statement mentions that the Veteran’s stomach disease affected his work and that the Veteran missed work. See August 2015 Lay Statement. The December 2019 VA examiner noted that the Veteran’s ulcer causes decreased productivity and efficiency due to his symptoms. The Board finds that the facts are not sufficient to warrant referral to the Director of Compensation Service for consideration of an extraschedular TDIU. The evidence fails to substantiate that the Veteran’s service-connected ulcer disorder is of such a severity or frequency that they prevent the Veteran from securing or following all forms of substantially gainful employment, consistent with his occupational history and educational attainment. The Veteran has never been issued permanent work restrictions based solely on his service-connected ulcer disorder. His level of impairment is best represented by the level of impairment contemplated by the assigned disability rating. The central inquiry is whether the Veteran’s service-connected disability, alone, is of sufficient severity to preclude the Veteran from obtaining and maintaining all forms of substantially gainful employment. Decreased productivity or missed days of work does not support a finding that the Veteran is totally precluded from all forms of employment due to his ulcer. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.