Citation Nr: 20062014 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 15-28 882 DATE: September 21, 2020 ORDER Entitlement to a rating in excess of 10 percent for peptic ulcer disease is denied. Entitlement to a rating in excess of 10 percent for a midline hernia, status post muscle pull, also is denied. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran’s service-connected peptic ulcer disease is not shown to have been more than mild, with recurring symptoms on average once or twice per year. 2. His service-connected midline hernia, status post muscle pull, is at most moderate and manifested by reports of pain; however, the medical evidence shows that no hernia is detected and there is no consequent indication of need for a supporting belt or truss.   CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent for peptic ulcer disease. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.114, Diagnostic Code (Code) 7305. 2. The criteria also are not met for a rating in excess of 10 percent for the midline hernia, status post muscle pull. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.114, Code 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in from February 1979 to February 1983. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded these claims for further development – including especially for VA compensation examinations reassessing the severity of these service-connected disabilities. Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3, The Board will consider entitlement to “staged” ratings to compensate for times when the disability may have been more severe than at others, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for peptic ulcer disease The Veteran’s peptic ulcer disease is currently evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7305, for duodenal ulcer disease. Under Diagnostic Code 7305, a 10 percent evaluation is warranted for a mild duodenal ulcer, with recurring symptoms once or twice per year. A 20 percent evaluation is in order for 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. A 40 percent evaluation contemplates a moderately severe ulcer, 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 rating of 60 percent is assigned to severe ulcers 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. 28 CFR§ 4.114, Diagnostic Code 7305. Following a review of the relevant evidence, the Board finds that a rating greater than 10 percent for the Veteran’s peptic ulcer disease is not warranted. The Board has considered the VA treatment records during the appeal period, as well as the reports of the May 2013 and November 2019 VA examinations. According to the report of the May 2013 VA examination, an upper gastrointestinal (UGI) series did not reveal gastric or peptic ulcer. The diagnosis was peptic ulcer disease, healed without residuals. During the more recent November 2019 VA examination, a 1981 diagnosis of duodenal ulcer was noted by history. Current signs and symptoms included abdominal pain (occurring at least monthly and relieved by standard ulcer therapy). Incapacitating episodes were not reported. The examiner opined that the evidence does not suggest that the Veteran’s VA established condition of duodenal ulcer is recurring or worsening. He further opined that the condition was of mild severity. When reviewing these examinations, the Board finds that a higher 20 percent rating is not warranted. The record does not reflect that the Veteran’s service-connected peptic ulcer disease is manifested by moderate ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations pursuant to 38 C.F.R. § 4.114, Code 7305. Neither VA examiner found that the Veteran’s ulcer disease resulted in considerable impairment. Rather, the November 2019 VA examiner indicated that the Veteran’s condition was of mild severity. The Board finds that the treatment records also being considered concurrently are probative indication of the true severity of this service-connected disability, in that these many hundreds of records do not show moderate ulcer disease with recurrent symptoms. In fact, the records dated during the appeal period do not show complaints or increased treatment for ulcers. Thus, when weighing the credible and competent evidence of record, the Board finds that the Veteran’s peptic ulcer disease is most accurately accounted for by the current 10 percent rating. Therefore, the claim for an increased rating must be denied. 2. Entitlement to a rating in excess of 10 percent for a midline hernia, status post muscle pull The Veteran currently has a 10 percent disability rating for his service-connected midline hernia, status post muscle pull, under 38 C.F.R. § 4.114, Code 7338. Under this Code, a 10 percent rating is assigned for postoperative recurrent hernia, readily reducible and well supported by truss or belt. A 30 percent rating is warranted for small, postoperative recurrent hernia or unoperated irremediable hernia, not well supported by truss or not readily reducible. A 60 percent rating is warranted for large, postoperative, recurrent hernia, not well supported under ordinary conditions and not readily reducible, when considered inoperable. An additional, separate compensable evaluation under Code 7804 is warranted when residual scars are unstable or painful. After a review of the evidence of record, the Board concludes that a disability rating in excess of 10 percent is not warranted for the Veteran’s midline hernia status post muscle pull because the evidence does not show a small, postoperative and recurrent, or unoperated and irremediable inguinal hernia, not well supported by truss or not readily reducible. Specifically, the report from the May 2013 and November 2019 VA examinations reflect a diagnosis of diastasis recti but did not detect a hernia. Further, the competent and credible medical evidence, provides that the Veteran has not had any further hernia complications during the period on appeal. VA examinations and VA outpatient treatment notes have identified no postoperative recurrent hernia or unoperated irremediable hernia, not well supported by truss or not readily reducible of the Veteran’s hernia. Additionally, the evidence of record does not establish that the Veteran would be entitled to a separate rating for unstable or painful scars as documented in the November 2019 VA examination. Therefore, the Veteran’s disability picture for his service-connected midline hernia status post muscle pull more closely approximates the disability picture contemplated by a 10 percent rating under Code 7338.   Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's increased rating claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.