Citation Nr: 21005509 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 18-23 137A DATE: February 1, 2021 ORDER Entitlement to an initial rating of 60 percent for service-connected peptic ulcer disease, status post complete vagotomy, from April 12, 2005 is granted, subject to the laws and regulations governing payment of monetary awards. FINDING OF FACT For the entire rating period on appeal, the Veteran’s service-connected peptic ulcer disease, status post complete vagotomy, has been manifested by severe symptoms with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent melena, and anemia and weight loss productive of definite impairment of health. CONCLUSION OF LAW The criteria for an initial rating of 40 percent, but not higher, for service-connected peptic ulcer disease status post complete vagotomy from April 12, 2005 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7348, 7305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to February 1968. This matter is before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted the Veteran service connection for peptic ulcer disease with a 10 percent evaluation, effective April 12, 2005. This matter was previously remanded by the Board in September 2019. Following additional development, the RO issued a June 2020 rating decision granting a 40 percent evaluation for the service-connected peptic ulcer disease, effective April 12, 2005. The increased rating constitutes a partial grant of benefits, and therefore the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Regarding the claim for a total disability due to individual unemployability (TDIU), the U.S. Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in this instance, the Veteran filed a separate claim for TDIU which was denied by the RO in an August 2020 rating decision, governed by the Appeal Modernization Act (AMA). The Veteran appealed this rating decision and selected the Direct Review lane. As this issue is appealed under the AMA, it will be the subject of a separate Board decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. 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. Entitlement to a rating in excess of 40 percent for service-connected peptic ulcer disease status post complete vagotomy. The Veteran is currently assigned a 40 percent disability rating for peptic ulcer disease, status post complete vagotomy. He contends that a higher rating is warranted. 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 in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area 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. See 38 C.F.R. § 4.113. In this regard, 38 C.F.R. § 4.114 indicates that 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 that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. The Veteran’s peptic ulcer disease status post complete vagotomy is currently rated under DC 7348. Under DC 7348, a 40 percent rating is warranted for demonstrably confirmative postoperative complications of stricture or continuing gastric retention. A 40 percent rating is the highest schedular rating for DC 7348. However, DC 7348 also states that a recurrent ulcer following complete vagotomy should be rated under DC 7305 and assigned a minimum of 20 percent. Under Diagnostic Code 7305, a 60 percent rating is warranted for severe symptoms associated 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. A 40 percent rating is warranted for moderately severe symptoms manifested by symptoms that are less than “severe,” but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. 38 C.F.R. § 4.114, Diagnostic Code 7305. The words “slight,” “moderate,” “moderately severe,” “marked,” and “severe” are not defined in the VA Rating Schedule. 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. A review of the record shows that the Veteran has been prescribed medication for his peptic ulcer disease throughout the relevant period on appeal. In April 2006, the Veteran reported that he underwent surgery in June 1970 for his peptic ulcer disease. The Veteran reported that he believed his colorectal cancer, for which he underwent surgery in April 2005 and January 2006, is related to his service-connected peptic ulcer disease. The Veteran’s VA treatment records indicate that the Veteran was treated for iron deficiency, or anemia, in February 2006. The Veteran sought treatment in September 2006 for acid reflux, among other conditions. The VA clinician noted that the Veteran’s peptic ulcer disease was controlled with medication. On June 2007 VA examination, the VA examiner noted that the Veteran had longstanding duodenal ulcer disease. The Veteran reported that he underwent surgery in approximately 1971 for his peptic ulcer condition. The VA examiner noted that the description of the surgery sounded like a partial gastric resection and vagotomy. The VA examiner noted that the Veteran reported continued pain, intermittent nausea, and vomiting, in spite of the medication he had been taking for his peptic ulcer condition. The Veteran reported using baking soda to relieve his recurring pain. The Veteran reported that he has intermittent epigastric pain, approximately once a month, which was relieved by baking soda or vomiting. The VA examiner noted that the Veteran did not have hematemesis, melena, circulatory disturbance, diarrhea, or constipation. The VA examiner noted that flare-ups are natural for duodenal ulcer disease. The VA examiner noted that the Veteran underwent multiple other surgeries because of carcinoma of the colon and was not related to his ulcer disease. On April 2014 VA examination, the VA examiner noted that the Veteran underwent an abdominal vagotomy in June 1970. The VA examiner noted that the Veteran had recurring episodes of symptoms that were not severe approximately 4 or more times per year that lasted approximately one to nine days in duration. The VA examiner noted that the Veteran experienced recurring episodes of severe symptoms approximately 4 or more times per year that lasted approximately one to nine days in duration. The VA examiner noted that the Veteran experienced anemia; weight loss; transient nausea lasting less than one day approximately 4 or more times per year; transient vomiting lasting less than one day approximately 4 or more times per year; and transient melena lasting less than one day approximately 4 or more times per year. The VA examiner noted that the Veteran had a vagotomy with pyloroplasty or gastroenterostomy and had demonstrably confirmative postoperative complications of stricture or continuing gastric retention. The VA examiner noted that the Veteran’s stomach condition did not impact his ability to work. The Veteran’s VA treatment records indicate that the Veteran reported vomiting and nausea in May 2014. The Veteran lost 12 pounds (lbs.) from November 2014 to March 2015. In March 2015, the Veteran reported rare nausea and vomiting. In May 2015, the Veteran reported progressive fatigue, weight loss, and poor appetite. The Veteran reported acid reflux, but denied nausea, vomiting, chest pain, diarrhea, abdominal pain, or blood in the colostomy bag. This was attributed to interval resolution of gas within the presacral soft collection and surrounding soft tissue thickening and pneumatosis involving a loop of bowel in the right lower quadrant. In November 2015, the Veteran sought treatment for nausea and vomiting, which was diagnosed as biliary colic. In the September 2017 notice of disagreement, the Veteran through his attorney argued that a 60 percent rating was warranted based on the April 2014 VA examination findings of symptoms including recurring episodes of severe symptoms with an average duration of between one to nine days and abdominal pain only partially relieved by treatment; anemia; weight loss; nausea; vomiting; and melena. The Veteran through his attorney further noted that the Veteran’s symptoms should be considered in an unmedicated state, as VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. The Veteran argued that the peptic ulcer symptoms would have been worse without the continuously prescribed medication. In April 2018, the Veteran sought emergency care for nausea, vomiting, dizziness, and fatigue, and was diagnosed with a urinary tract infection. The Veteran reported poor appetite and lost at least 10 lbs. during this time, which he reported was intentional. In a May 2018 correspondence accepted as the VA Form 9 perfecting the Veteran’s appeal, the Veteran through his attorney indicated that extraschedular consideration for an increased rating should be considered due to the existence of symptoms not explicitly contemplated by DC 7305. Notably, however, the Veteran did not specify the peptic ulcer symptoms that he was experiencing that were not explicitly contemplated by DC 7305. The Veteran’s VA treatment records indicate that the Veteran lost approximately 20 to 30 lbs. by June 2018 and that his weight continued to fluctuate. The Veteran was found to be anemic in October 2018. In a January 2019 correspondence, the Veteran through his attorney submitted a copy of the June 1970 abdominal vagotomy operation report indicating that a segment of the Veteran’s vagus nerve was removed during the procedure, which demonstrates that a truncal, or complete, vagotomy was performed. In February 2019, the Veteran reported nausea, which he described as an on and off problem for many years. From April 2019 to June 2019, the Veteran underwent multiple colonoscopies and testing. A blood occult feces spot test indicated positive results for blood in the stool, and the Veteran reported dyspepsia, heartburn, and bright red blood in his ostomy output. The Veteran was noted to be anemic with a gastrointestinal bleed. No ulcerations or gastritis was noted. An October 2019 capsule endoscopy showed erosions in the jejunum. On December 2019 VA examination, the Veteran reported periumbilical pain with occasional nausea and vomiting. He reported that abdominal pain occurred two to three times per week, and that he then would take bicarbonate, which he would then vomit. The Veteran noted that he feels better immediately after vomiting. The Veteran reported taking daily medication for his peptic ulcer condition. He further reported that if he forgets to take his medication, he develops severe and sharp epigastric pain lasting approximately half of a day. The VA examiner noted that the Veteran experienced recurring episodes of severe symptoms approximately 4 or more times per year that lasted approximately less than one day in duration; periodic abdominal pain occurring at least monthly and relieved by standard ulcer therapy; transient nausea lasting less than one day approximately 4 or more times per year; transient vomiting lasting less than one day approximately once per year; and incapacitating episodes due to his peptic ulcer condition approximately once per year lasting less than one day in duration. The Veteran reported incapacitating episodes occurring at least once per month. The VA examiner noted that the Veteran’s stomach condition did not impact his ability to work. The VA examiner reported inability to determine whether the Veteran’s vagotomy was complete or incomplete, as the record did not contain the Veteran’s vagotomy procedure from 1970. The VA examiner attributed the Veteran’s weight loss and anemia to his significant non-service connected comorbidities, to include residuals and complications of rectal cancer, chronic congestive heart failure, coronary artery disease, chronic kidney disease, and prostate cancer. The VA examiner concluded that the Veteran’s service-connected peptic ulcer condition remained stable dating back to approximately 2005. On July 2020 VA examination using the Acceptable Clinical Evidence (ACE) process, the VA examiner found that the Veteran experienced recurring episodes of symptoms that were not severe approximately 4 or more times per year that lasted approximately less than one day in duration; periodic nausea occurring 4 or more times per year lasting approximately less than one day in duration; periodic vomiting occurring 4 or more times per year lasting approximately less than one day in duration; periodic melena occurring once per year lasting approximately one to nine days in duration. The VA examiner noted that the Veteran did not have incapacitating episodes due to his stomach condition. The VA examiner noted that the Veteran’s stomach condition would impact his ability to work due to intermittent pain, nausea, and vomiting, which would require frequent breaks. After a careful and thorough review of the pertinent medical and lay evidence, the Board finds that the Veteran’s symptoms of the peptic ulcer disease status post complete vagotomy most nearly approximate the rating criteria for a 60 percent evaluation under DC 7305. Throughout the relevant period on appeal, the Veteran exhibited severe symptoms of pain only partially relieved by standard ulcer therapy; periodic vomiting; recurrent melena; anemia; and weight loss productive of definite impairment of health. The Board notes that, while the April 2014 VA examination was found by the Court of Appeals for Veterans Claims (CAVC) to be insufficient for adjudicating the issue of service connection for the peptic ulcer condition in an October 2015 Joint Motion for Remand (JMR), the Board finds that the opinion is the most thorough description of the Veteran’s peptic ulcer condition at the time. Accordingly, the April 2014 VA examination is afforded probative value in the claim for an increased rating. The Board acknowledges that the June 2007 VA examination, April 2014 VA examination, December 2019 VA examination, and July 2020 VA examination each provided differing conclusions as to the nature and severity of the Veteran’s service-connected peptic ulcer disease. As noted by the June 2007 VA examiner, flare-ups are natural in duodenal ulcer disease. Accordingly, the Board finds that the Veteran’s history of peptic ulcer disease symptoms during the entire period of the appeal most nearly approximates the rating criteria for a 60 percent evaluation under DC 7305. The Board notes that ratings in excess of 60 percent are not available under DC 7305. Therefore, the Board finds that an increased rating in excess of 60 percent for the Veteran’s service-connected gastrointestinal disability is not warranted under DC 7305. The Board has considered further 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 peptic, or duodenal, ulcer, 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.”). Moreover, as noted previously, DC 7348 states that a recurrent ulcer following complete vagotomy should be rated under DC 7305. Accordingly, the Board finds that the Veteran’s duodenal ulcer is appropriately rated under Diagnostic Code 7305 for the entirety of the appeal period. See 38 C.F.R. § 4.114. Extraschedular rating The Veteran through his attorney raised the issue of whether the claim should be referred to the Director of Compensation for extraschedular consideration. The Board has considered whether the claim should be referred. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Board finds that the rating criteria reasonably describes the Veteran’s disability levels and symptomatology pertaining to his service-connected peptic ulcer disease. As the rating criteria specifically contemplate the Veteran’s symptomology, the assigned schedular rating is, therefore, adequate. The Veteran has multiple comorbid non-service connected conditions that are distinct and separate from his service-connected peptic ulcer disease. Consequently, referral for extraschedular consideration is not required. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.