Citation Nr: 20023055 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 18-25 493 DATE: April 2, 2020 ORDER A rating in excess of 10 percent for gastric ulcer, to include hiatal hernia, is denied. A compensable rating for excision of lipoma of the stomach with no residuals is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s gastric ulcer, to include hiatal hernia, is no more than mild in nature, with recurring symptoms once or twice yearly, and does not more nearly approximate a moderate disability with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or continuous moderate manifestations. 2. For the entire appeal period, the Veteran’s excision of lipoma of the stomach with no residuals is manifested by a linear scar measuring 3.5 cm by 0.2 cm, which is not deep, painful, or unstable, and results in no disabling effects. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for gastric ulcer, to include hiatal hernia, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, Diagnostic Code 7304. 2. The criteria for a compensable rating for excision of lipoma of the stomach with no residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on October 4, 2016, the date VA received the Veteran’s claims for increased ratings for his gastric ulcer, to include hiatal hernia, and excision of lipoma of the stomach with no residuals, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 1. Entitlement to a rating in excess of 10 percent for gastric ulcer, to include hiatal hernia. The Veteran contends that his gastric ulcer, to include hiatal hernia, is more severe than as reflected by the currently assigned rating. In this regard, for the entire appeal period, such disability has been rated as 10 percent disabling pursuant to Diagnostic Code 7304, which pertains to gastric ulcers. 38 C.F.R. § 4.114. Diagnostic Code 7304 provides that a mild ulcer, with recurring symptoms once or twice yearly, is rated 10 percent disabling. A moderate ulcer, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations, is rated 20 percent disabling. A moderately severe ulcer that is less than severe that a severe ulcer, 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, is rated 40 percent disabling. A severe 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, is rated 60 percent disabling. 38 C.F.R. § 4.114. 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 by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions under the title “Diseases of the Digestive System,” do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. As such, ratings under Diagnostic Codes 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 rating where the severity of the overall disability warrants elevation. 38 C.F.R. § 4.114. Records from Glenwood Regional Medical Center reflect that, in September 2016, the Veteran was hospitalized for a week for admitting diagnoses of hematemesis and unspecified gastrointestinal hemorrhage. VA treatment records show that the discharge summary from such hospitalization included diagnoses of upper gastrointestinal bleeding; acute blood loss anemia; acute respiratory failure, resolved: acute exacerbation of chronic obstructive pulmonary disease (COPD); alcohol withdrawal; hemorrhagic shock; and Mallory-Weiss tear. An October 2016 VA treatment records reflects that the Veteran presented for hospital discharge follow up. At such time, he reported that he was doing fine and all of a sudden began vomiting blood, which led to his hospitalization. It was again noted that the Veteran had an upper gastrointestinal bleed with acute blood loss anemia, acute respiratory failure, alcohol withdrawal following an acute exacerbation of COPD, hemorrhagic shock, and Mallory-Weiss tear, which was repaired with a clip placement. Upon examination, bowel sounds were normal and abdomen was soft and nontender, The Veteran’s laboratory tests revealed anemia with Hgb of 7.9 and 7.7. VA treatment records dated later in October 2016 reflect that, upon follow up, the Veteran denied abdominal pain, no recent hematemesis, no melena, no cirrhosis, and no chest pain. Hgb was 7.9, and the Veteran complained of fatigue and dyspnea on exertion. A day later, it was noted that the Veteran’s Hgb was stable at 8.0 without signs of active bleeding. The physician indicated that such anemia was likely secondary to his recent upper gastrointestinal bleed. There was no indication for a transfusion at such time. Upon a review of the Veteran’s gastrointestinal system, there was no nausea/vomiting, diarrhea/constipation, rectal bleeding, change in bowel habits, abdominal pain, or change in stool color. Upon examination, he had a soft, non-tender, protuberant abdomen without masses. Such was tympanic on percussion and positive for bowel sounds. In November 2016, it was noted that the Veteran was doing much better and was asymptomatic as related to his September 2016 gastrointestinal bleeding. Bowel sounds were normal upon examination, and his Hgb was noted to be much improved. The remainder of the Veteran’s VA treatment records are negative for any complaints or treatment for his gastric ulcer, to include hiatal hernia, or anemia. At a February 2017 VA examination, the Veteran had complaints of recurrent gnawing and burning; feeling of indigestion in the epigastrium, which goes away after half an hour; and pain at night. Upon examination, it was noted that the Veteran had abdominal pain that occurred less than monthly and transient nausea that lasted less than a day occurring four or more times a year. Anemia, weight loss, vomiting, hematemesis and melena were not noted. The examiner further found that the Veteran did not have any incapacitating episodes due to his gastrointestinal disability. Postgastrectomy syndrome and vagotomy with pyloroplasty or gastroenterostomy were noted to be present, but there were no symptoms or findings referable to such diagnoses. Finally, the examiner noted that the Veteran reported that weakness, fatigue, and dizziness affect his productivity and ability to work. Based on the foregoing, the Board finds that the Veteran’s gastric ulcer, with hiatal hernia, is no more than mild in nature, with recurring symptoms once or twice yearly. In this regard, while the Veteran had an upper gastrointestinal bleed in September 2016 with a subsequent diagnosis of anemia, such resolved by November 2016, and no further complaints, treatment, or diagnosis referable to such symptomatology is demonstrated by his treatment records. Furthermore, such records, as well as the February 2017 VA examination, reflect that the Veteran’s gastrointestinal disability results in subjective symptoms consisting of recurrent gnawing and burning, feeling of indigestion in the epigastrium, pain at night, weakness, fatigue, and dizziness, with objective findings of abdominal pain that occurred less than monthly and transient nausea that lasted less than a day occurring four or more times a year. Based on such reported symptoms and physical findings, the Board finds that the Veteran’s gastric ulcer, with hiatal hernia, does not more nearly approximate a moderate disability as there is no evidence of recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or continuous moderate manifestations. Therefore, the Board finds that a rating in excess of 10 percent for the Veteran’s gastric ulcer, with hiatal hernia, is not warranted under Diagnostic Code 7304. The Board further observes that the characterization of the Veteran’s gastrointestinal disability includes a hiatal hernia, which is rated under Diagnostic Code 7346; however, as noted previously, 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. §§ 4.113, 4.114. Thus, a separate rating for such disability is not warranted. Moreover, as there is no evidence of a hiatal hernia at any point pertinent to the appeal period, the Board finds that the Veteran’s gastric ulcer, and the rating criteria pertinent to such, reflects his predominant disability picture. Id. Thus, a higher rating under Diagnostic Code 7346 is likewise not warranted. 2. Entitlement to a compensable rating for excision of lipoma of the stomach with no residuals. The Veteran contends that his excision of lipoma of the stomach with no residuals is more severe than as reflected by the currently assigned rating. In this regard, for the entire appeal period, such disability has been rated as noncompensably disabling pursuant to Diagnostic Code 7805, which pertains to other scars and other effects of scars evaluated under Diagnostic Codes 78000, 7801, 7802, and 7804. 38 C.F.R. § 4.118. In this regard, such criteria directs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be evaluated under an appropriate Diagnostic Code. The Veteran’s private and VA treatment records dated throughout the appeal period are negative for any complaints, treatment, or diagnosis referable to his excision of lipoma of the stomach. A February 2017 VA examination revealed that such was located on the anterior trunk and measured 3.5 cm by 0.2 cm. It was linear, and was not deep, painful, or unstable. Further, the examiner indicated that such did not result in limitation of function. In this regard, Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. As the Veteran’s service-connected scar is located on his anterior trunk, such Diagnostic Code is not for application. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118. According to VA examination report, the Veteran’s scar is not deep, and is linear. Consequently, such Diagnostic Code also is not applicable. Diagnostic Code 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under this Diagnostic Code, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this Diagnostic Code. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. As the Veteran’s scar does not cover an area of 144 square inches (929 sq. cm) or greater, a compensable rating is not warranted under this Diagnostic Code. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. 38 C.F.R. § 4.118. Three or four scars that are unstable or painful warrant a 20 percent rating, while five or more scars that are unstable or painful warrant a 30 percent evaluation. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. at Note (3). In this case, the Veteran’s service-connected scar is not painful or unstable at any time during the appeal period and, thus, a compensable rating under Diagnostic Code 7804 is not warranted. Finally, as pertinent to Diagnostic Code 7805, the evidence fails to show that the Veteran’s scar results in any disabling effects. Consequently, a compensable rating for the Veteran’s excision of lipoma of the stomach with no residuals under such Diagnostic Code, or any of the aforementioned Diagnostic Codes, is not warranted. Other Considerations In reaching the foregoing determinations, the Board recognizes the Veteran’s sincerely held belief that his gastrointestinal disability and scar are more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected gastrointestinal disability and scar; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the increased rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching such decision, the Board has considered the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims for increased ratings for his gastrointestinal disability and scar. Therefore, the benefit of the doubt doctrine is not applicable and his increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3. Entitlement to service connection for a lumbar spine disorder. The Veteran contends that he injured his back in 1975 or 1976 during training in the Philippines. In this regard, he reported that he was placed on three days bedrest and light duty. Thus, the Veteran claims that service connection for a lumbar spine disorder is warranted. The Veteran’s private and VA treatment records reflect ongoing complaints and treatment for a currently diagnosed lumbar spine disorder. However, his service treatment records, to include records pertaining to his hospitalization in Yokosuka, Japan, for his gastrointestinal disability, are negative for complaints, treatment, or diagnosis referable to a lumbar spine disorder. Nonetheless, as the Veteran has reported hospitalization in 1975 or 1976 at the U.S. Naval Hospital in Subic Bay, Philippines, followed by placement on light duty, the Board finds that a remand is necessary in order to obtain any such clinical records and his service personnel records. After obtaining any outstanding records, the AOJ should review the record and conduct any additionally indicated development, to include obtaining any VA examinations and/or opinions deemed necessary for the adjudication of the Veteran’s claim. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s service personnel records as well as any outstanding clinical records referable to the Veteran’s treatment for back complaints in 1975 or 1976 at the U.S. Naval Hospital in Subic Bay, Philippines. Be advised that clinical records may be filed under the facility’s name rather than the Veteran’s name. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. After obtaining any outstanding records as a result of this remand, the AOJ should review the record and conduct any additionally indicated development, to include obtaining any VA examinations and/or opinions deemed necessary for the adjudication of the Veteran’s claim. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.