Citation Nr: A21016820 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 200515-84233 DATE: October 15, 2021 ORDER Entitlement to an initial compensable rating for peptic ulcer disease is denied. Entitlement to an effective date earlier than January 26, 2019 for the grant of service connection for peptic ulcer disease is denied. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's peptic ulcer disease has not manifested in any signs or symptoms. 2. No evidence prior to January 26, 2019 may be construed as a formal or informal claim of entitlement to service connection for peptic ulcer disease. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for peptic ulcer disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7305. 2. The criteria for an effective date earlier than January 26, 2019 for the grant of service connection for peptic ulcer disease have not been met. 38 U.S.C. §§ 5101 (a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1 (p), 3.102, 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to March 2009. The rating decision on appeal was issued in May 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Board notes that in July 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the May 2019 rating decision. In August 2019, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the May 2019 rating decision. In his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) dated May 2020, the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the May 2019 decision. 38 C.F.R. § 20.301. Subsequently, additional evidence was added to the claims file during a period of time when new evidence was not allowed. Specifically, in his VA Form 10182, the Veteran indicated that ulcers were found during an endoscopy procedure in October 2019. As the Board is deciding the claims of entitlement to an initial compensable rating for peptic ulcer disease (PUD) and entitlement to an effective date earlier than earlier than January 26, 2019 for the grant of service connection for peptic ulcer disease which were denied in a May 2019 rating decision, it may not consider this additional evidence in its decision. 38 C.F.R. § 20.300. If the Veteran wishes to have this or any other evidence considered, he may file a Supplemental Claim and resubmit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to an initial compensable rating for peptic ulcer disease. The Veteran's peptic ulcer disease is currently rated as noncompensable throughout the claim period, under DC 7305. See 38 C.F.R. § 4.114. Under DC 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 assigned 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. 38 CFR§ 4.114, DC 7305. The terms "mild," "moderate," and "severe" are not defined in the Schedule of Ratings. Rather than applying a mechanical formula, the Board must evaluate all 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 Veteran was afforded a VA Stomach and Duodenum conditions examination in May 2019. The VA examiner diagnosed duodenal scarring with a history of peptic ulcer disease. The Veteran reported that he was diagnosed with an ulcer in 1991 but was unable to recall whether he has current peptic ulcer disease. He indicated that he experiences "hunger pains" sometimes, but denied any abdominal pain, nausea, vomiting, bloating, bloody emesis, blood in his stool or weight loss. The Veteran indicated that his current treatment was over the counter Pepto Bismol or Mylanta as needed. The examiner indicated that the Veteran did not have any signs or symptoms related to a stomach or duodenal condition, did not experience any GI related incapacitating episodes and there were no pertinent physical findings related to his peptic ulcer disease. The examiner noted that the Veteran had upper GI imaging in November 2018, which demonstrated duodenal bulb scarring versus ulceration which needed to be clarified with endoscopy. That imaging was in contrast to a July 1991 upper GI imaging series which reported irregular duodenal bulb and proximal duodenum most consistent with active peptic ulcer disease. The examiner remarked that there was no objective evidence of active peptic ulcer disease and no record of treatment for active peptic ulcer disease following service. Treatment records in the Veteran's claims file as of the date of the May 2019 rating decision, were silent for any symptoms or treatment of peptic ulcer disease. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's peptic ulcer disease manifests in compensable symptomatology. Significantly, the Veteran has not reported, nor is there any objective evidence of record suggesting any symptomatology related to peptic ulcer disease. The Board acknowledges that the Veteran indicated the use of over-the-counter medicines as needed, for "hunger pains" but did not endorse any required frequency. In reaching this conclusion, the Board also considered whether the Veteran is entitled to a higher rating under any other diagnostic code for his gastrointestinal disability. 38 C.F.R. § 4.114. However, it is not shown that he suffers from any of the symptoms required for a higher rating under any of the other potentially applicable diagnostic codes, e.g., DC 7306 (marginal ulcer), DC 7307 (gastritis), DC 7319 (irritable colon syndrome), DC 7346 (hiatal hernia). Furthermore, the Veteran's service-connected disability is diagnosed as duodenal scarring with a history of peptic ulcer disease, which is specifically contemplated by the Schedule. In Copeland v. McDonald, 27 Vet. App. 333, 337 (2015), the Court "reiterate[d] that when a condition is specifically listed in the Schedule, it may not be rated by analogy." See also Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is "unlisted."). In this regard, the Board finds that the Veteran's peptic ulcer disease is appropriately rated under Diagnostic Code 7305 for the entirety of the appeal period. See 38 C.F.R. § 4.114 As noted in the introduction, the Board's review in this matter is limited to the evidence of record at the time of the May 2019 rating decision. Based upon that review and for the reasons already identified, the Veteran's claim for an initial compensable rating for peptic ulcer disease is denied. EFFECTIVE DATE CLAIMS As a matter of law, the effective date of a disability compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). The exception to this rule is when a claim is received within one year after separation from service. If a claim is received within one year after separation from service, the effective date is the day following separation from active service. 38 C.F.R. § 3.400 (b)(2). For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1 (p). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155 (b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one-year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155 (b). 1. Entitlement to an effective date earlier than January 26, 2019 for the grant of service connection for peptic ulcer disease. The Veteran seeks an effective date earlier than January 26, 2019 for the grant of service connection for peptic ulcer disease (PUD). In his May 2020 VA Form 10182 he reports that he was diagnosed with PUD in October 1991, implying that his effective date should be the date he was first diagnosed with PUD. A review of the Veteran's claims file reflects that the Regional Office (RO) received his intent to file a claim on January 26, 2019 and acknowledged the same in correspondence dated January 28, 2019. An original claim for entitlement to service connection for peptic ulcer disease was received by the RO on April 21, 2019. A May 2019 VA examination report which evaluated the Veteran's stomach and duodenal conditions confirmed a diagnosis of duodenal scarring with a history of peptic ulcer disease. A May 2019 rating decision granted service connection, finding that a nexus was established between the Veteran's peptic ulcer disease and military service. It established an effective date as January 26, 2019, the date VA received the Veteran's intent to file a claim. (Continued on the next page) The Board acknowledges the Veteran's contention that he believes the effective date should be the date he was diagnosed with peptic ulcer disease while in service. However, the controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim received beyond one year after discharge, will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(1); 38 C.F.R. § 3.400 (b)(2). In this case the claim the Veteran separated from active duty in March 2009. His notice of intent to file a claim was received on January 26, 2019, followed thereafter by an original claim for service connection for peptic ulcer disease. The Board has carefully reviewed all documents in the Veteran's claims file and finds there is no evidentiary basis for the assignment of an earlier effective date. No earlier correspondence can be construed as either a notice of intent to file a claim or a claim for entitlement to service connection for peptic ulcer disease. The effective date was properly assigned as the date of receipt of the January 26, 2019 notice of intent. Accordingly, the claim for an earlier effective date is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.