Citation Nr: 21003094 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-19 614 DATE: January 19, 2021 ORDER A rating in excess of 10 percent for gastric ulcer, status post vagotomy, for the period of appeal prior to September 28, 2020, is denied. A rating in excess of 20 percent for gastric ulcer, status post vagotomy, for the period of appeal from September 28, 2020, is denied. FINDINGS OF FACT 1. For the period of appeal prior to September 28, 2020, the gastric ulcer symptoms were now worse than moderate and recurred intermittently, without evidence of severe symptoms, continuous moderate manifestations, recurrent ulcer, or incomplete vagotomy. 2. For the period of appeal from September 28, 2020, the gastric ulcer symptoms are no worse than moderate, without evidence of severe symptoms, recurrent ulcer, or incomplete vagotomy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for gastric ulcer prior to September 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7304. 2. The criteria for a rating in excess of 20 percent for gastric ulcer from September 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1974 to November 1979. The Board remanded the issue in July 2018 for issuance of a Supplemental Statement of the Case (SSOC) and in November 2019 to associate outstanding treatment records with the claims file and afford the Veteran a VA examination to determine the current severity of the gastric ulcer disability. VA treatment records have subsequently been associated with the claims file and the Veteran had a VA examination in September 2020. The Veteran was sent letters in April and October 2020 requesting that he submit any records that he wished to be considered or authorize VA to obtain said records. To date, no response has been received. An SSOC was issued in November 2020. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased rating for gastric ulcer prior to September 28, 2020. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Disabilities of the digestive system are evaluated under 38 C.F.R. § 4.114, which provides that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with evaluation of the next higher rating where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. In this case, for this period of the appeal, the gastric ulcer was originally rated as noncompensable (zero percent) under Diagnostic Code 7304-7348. In July 2019, a 10 percent rating was granted under Diagnostic Code 7304 for this period of appeal (from June 26, 2012 to September 27, 2020). Under Diagnostic Code 7304, a 10 percent rating is warranted for mild gastric ulcer with recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate gastric ulcer with recurring episodes of severe symptoms two to three times a year averaging 10 days in duration, or with continuous moderate manifestations. A 40 percent rating is warranted for moderately severe gastric ulcer with symptoms which are 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 60 percent rating is warranted for 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. 38 C.F.R. § 4.114, Diagnostic Code 7304. “Moderate,” “moderately severe,” “marked, and “severe” are not defined in the VA 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. It should also be noted that use of terminology such as “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. Under Diagnostic Code 7348 for vagotomy with pyloroplasty or gastroenterostomy, a 20 percent rating is assigned for recurrent ulcer with incomplete vagotomy, a 30 percent rating is assigned for symptoms and confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea, and a 40 percent rating is assigned when the surgical intervention is followed by demonstrably confirmative postoperative complications of stricture or continuing gastric retention. 38 C.F.R. § 4.114, Diagnostic Code 7348. In a May 2012 letter, the Veteran’s private physician, Dr. N.O., indicated that the Veteran had an abdominal wall problem that caused him pain, especially during exercise. He had an elevation and bulging of the left side of his abdomen, close to a surgical wound, which could be a complication of his stomach surgery. In a November 2012 VA stomach and duodenal conditions examination, the Veteran reported that he was seen at a private facility, but had not had any follow-up regarding his condition. His symptoms included a burning sensation and cramps, and he took over-the-counter Zantac. He denied hospitalizations, going to an emergency room, surgeries, or any incapacitating episodes. The examiner indicated that the Veteran’s symptoms included abdominal pain that occurred less than monthly; nausea that was periodic, occurred four or more times per year, and lasted 1-9 days; and vomiting that was mild, occurred four or more times per year, and lasted less than one day. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the gastric ulcer. In an April 2017 VA stomach and duodenal conditions examination, the Veteran reported having occasional reflux and bloating, for which he used Zantac. He was concerned about a possible abdominal hernia. The examiner indicated that the Veteran had recurring episodes of symptoms that were not severe, occurred twice per year, and lasted less than one day on average. He also had abdominal pain that was unrelieved by standard ulcer therapy. The Veteran did not have any incapacitating episodes or any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the gastric ulcer. VA treatment records dated during the period of appeal note a history of peptic ulcer disease, but are silent for mention of current relevant complaints or symptoms. In addition, as discussed above, the issue was remanded in November 2019 to obtain any relevant non-VA treatment records, including from Dr. D. in Santurce. Letters were sent to the Veteran in April and October 2020 requesting that the Veteran submit any records that he wished to be considered or authorize VA to obtain said records. To date, no response has been received. The Board finds that a rating higher than 10 percent is not warranted at any time during this period of appeal. The Veteran’s gastric ulcer symptoms included abdominal pain, nausea, and vomiting, which two VA examiners indicated were not severe and did not occur continuously. The Board finds such symptomatology to be, at worst, moderate. There is no evidence of severe symptoms, continuous moderate manifestations, recurrent ulcer, or incomplete vagotomy. Thus, a higher rating is not warranted under Diagnostic Code 7304 or 7384. The Board has also considered whether a higher rating is warranted under other potentially analogous diagnostic codes, including 7307, relating to gastritis, 7319, relating to irritable colon syndrome, and 7346, relating to a hiatal hernia. However, the November 2012 and April 2017 VA examiners both indicated that het Veteran did not have gastritis. Thus, a higher rating is not warranted under Diagnostic Code 7307. See 38 C.F.R. § 4.114, Diagnostic Code 7307. Additionally, as the record does not show symptoms analogous to severe diarrhea and/or constipation, with more or less constant abdominal distress, the Board finds that a higher rating is not warranted under Diagnostic Code 7319. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Finally, the record does not show symptoms analogous to persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Thus, a higher rating is not warranted under Diagnostic Code 7346. See 38 C.F.R. § 4.114, Diagnostic Code 7346. 2. Increased rating for gastric ulcer from September 28, 2020. In a November 2020 rating decision, the AOJ increased the rating for the gastric ulcer to 20 percent effective September 28, 2020. In a September 28, 2020, VA examination conducted via telehealth, the Veteran reported that his condition had stayed the same since onset. His symptoms included abdominal pain, nausea, vomit, and diarrhea, which occurred “intermittent monthly.” He took pantoprazole twice per day and avoided alcohol and sauces. The examiner indicated that the Veteran had abdominal pain that was only partially relieved by standard ulcer therapy; mild nausea that occurred four or more times per year and lasted less than one day; mild vomiting that occurred four or more times per year and lasted less than one day. The Veteran’s symptoms were not severe, occurred four or more times per year, and lasted less than one day on average. He had not had any incapacitating episodes. VA treatment records dated during the period of appeal note a history of peptic ulcer disease, but are silent for mention of current relevant complaints or symptoms. The Board finds that a rating higher than 20 percent is not warranted at any time during this period of appeal. The Veteran’s gastric ulcer symptoms included abdominal pain that was only partially relieved by standard ulcer therapy, nausea, and vomiting, which the VA examiner indicated were mild and did not occur continuously. The Board finds such symptomatology to be, at worst, moderate. There is no evidence of severe symptoms, continuous moderate manifestations, recurrent ulcer, or incomplete vagotomy. Thus, a rating in excess of 20 percent is not warranted under Diagnostic Code 7304 or 7384. The Board has also considered whether a higher rating is warranted under other potentially analogous diagnostic codes; however, the September 2020 VA examiner indicated that the Veteran did not have gastritis, and there is no evidence of symptoms analogous to severe diarrhea and/or constipation with more or less constant abdominal distress, or persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Thus, a higher rating is not warranted under Diagnostic Codes 7307, 7319, or 7346. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.