Citation Nr: 21015990 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 11-27 497 DATE: March 18, 2021 ORDER Entitlement to a rating of 20 percent but no higher for duodenal ulcer is granted. Entitlement to service connection for major depressive disorder secondary to service-connected gastric cancer is granted. FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran’s service-connected duodenal ulcer disease is shown to manifest with continuous moderate manifestations. 2. The major depressive disorder was aggravated by the Veteran’s service-connected gastric cancer. CONCLUSIONS OF LAW 1. The criteria a rating of 20 percent but no higher for duodenal ulcer have been met. 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 7305. 2. The criteria for service connection for major depressive disorder as aggravated by service-connected gastric cancer have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to July 1976, with one year of service in Korea. The Veteran passed away in February 2018. The appellant, the Veteran’s surviving spouse, has been properly substituted as the claimant. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2010 and June 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before a Veterans Law Judge at a travel board hearing in August 2016. This matter was remanded by the Board in January 2017. 1. Entitlement to a rating in excess of 10 percent for service-connected duodenal ulcer. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran’s duodenal ulcer is currently evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7305. 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. 38 CFR§ 4.114, Diagnostic Code 7305. An April 2010 VA stomach and duodenum examination report shows that the Veteran reported increased flare ups of the duodenal ulcer with constant pain. He reported weight loss due to anorexia due to the conditions with nausea and vomiting that happened about 2 days per month lasting up to 4 days. The Veteran reported severe flare up pain. Hematemesis and melena were not reported. The Veteran was treated with Prilosec every day before a meal with poor response and no reported side effects. No reports of diarrhea, constipation, or peritoneal adhesions. The examiner noted that the Veteran did not have any prescribed bedrest due to incapacitation related to the ulcer. No recent hospitalization or surgery were noted. No history of trauma. The Veteran reported that he was unable to hold gainful employment due to the flare ups from the ulcers. Physical examination showed that the Veteran had lost weight, which he reported was due to anorexia due to flare ups. No signed of anemia were assessed. Tenderness in the upper quadrants was assessed. Bowel sounds throughout without organomegaly or bruits. The examiner diagnosed the Veteran with duodenal ulcers with treatment of Prilosec with recurrent flareups. A March 2011 VA stomach and duodenum examination report shows that the Veteran reported worsening symptoms of his ulcer condition. He reported more pain and increased dosages of omeprazole. The Veteran reported anorexia with 23-pound weight loss since 2007. Occasional nausea was reported but no vomiting. No dark stools were reported but loose stools at time was noted. The Veteran reported an episode of pain that was so severe he had to leave work. Physical examination noted epigastric tenderness, bowel sounds were present. Nondistended was noted. A June 2011 VA hospitalization record shows that he was admitted to the hospital for abdominal pain diagnosed as signet ring adenocarcinoma. A December 2014 VA stomach and duodenal conditions examination report shows that the Veteran was diagnosed with a gastric ulcer. The examiner noted the medical history as increased symptoms beginning in 2011 when the Veteran developed GI symptomatology consisting of early abdominal pain, nausea, and vomiting. An upper endoscopy noted a malignant gastric ulcer. The examiner noted that the Veteran’s took medication to treat his ulcer. Signs and symptoms were noted as recurring episodes of symptoms that were not severe and occurring 3 times per year, lasting less than one day. No severe episodes were assessed. Abdominal pain occurring less than monthly, that was periodic, and only partially relieved by standard ulcer therapy were assessed. Nausea that was mild occurring 4 more times per year were assessed. No incapacitating episodes were noted. The examiner noted that the gastric ulcer condition did not impact his ability to work. An October 2017 VA stomach and duodenal conditions examination report shows that the Veteran was diagnosed with duodenal ulcer. The Veteran reported that he continued to have stomach pain and heartburn symptoms. The examiner noted that the Veteran took medication for the ulcer. The examiner noted that the Veteran’s ulcer resulted in recurring episodes of symptoms that were not severe occurring 4 or more time per year lasting less than one day. Abdominal pain was noted occurring at least monthly and only partially relieved by standard ulcer therapy. Mild nausea occurred 4 or more times a year and lasting less than one day in duration was assessed. Mild vomiting was noted occurring 4 or more times per year last less than one day in duration was assessed. No incapacitating episodes were noted. The Veteran noted that the Veteran reported his strength was gone and he felt weak all the time. The Board has also considered the VA treatment records and private treatment records during the appeal period. When reviewing these examinations, the Board finds that a higher 20 percent rating but no higher is warranted. The record reflects that the Veteran’s service-connected ulcer was manifested by moderate ulcer with recurring episodes of 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. The VA examination reports of record show that the Veteran’s ulcer resulted in moderate impairment consisting of moderate continuous symptoms. While VA examiners indicated that the Veteran’s ulcer resulted in symptoms of mild severity, the examiners also noted continued symptoms of nausea, vomiting, stomach pain, weight loss, and fatigue. The Board finds that these symptoms meet the criteria for a rating of 20 percent but no higher. The Board also finds that a rating in excess of 20 percent is not warranted as the Veteran was not assessed with a moderately severe ulcer, or 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. While some weight loss was reported due to anorexia, anemia was not diagnosed. Additionally, the Veteran was not assessed with incapacitating episodes. Therefore, a rating higher than 20 percent is not warranted. Thus, when weighing the credible and competent evidence of record, the Board finds that the Veteran’s ulcer disease is most accurately accounted for by a 20 percent rating but no higher. 2. Entitlement to service connection for major depressive disorder secondary to gastric cancer. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A review of the Veteran’s service treatment record shows no diagnosis or reports for a psychiatric disability. A review of the Veteran’s VA treatment records notes that he was first treated post separation from service for depression in 2006. A November 2011 VA mental health treatment note shows that the Veteran was being treated for major depression since 2005. The VA psychiatrist reported that the Veteran’s depression was well controlled until his diagnosis of stomach cancer. The examiner opined that the diagnosis and treatment of stomach cancer worsened his major depressive disorder. A May 2012 VA examination report shows that the Veteran was diagnosed with major depressive disorder. The Veteran asserted that his depression began in association with his gastric cancer. The Veteran was noted to have surgery in 2011 for cancer and became increasingly estranged from family and friends. The examiner opined that it was at least as likely as not that the depression was related to gastric problems. A June 2012 addendum report clarified that the Veteran’s symptoms were secondary to his diagnosis of stomach cancer and not his healed gastric ulcer. A December 2012 VA mental health treatment note shows that the Veteran’s treatment course of major depressive disorder was complicated by his diagnosis and treatment for gastric cancer. A June 2020 VA examination report shows that after a review of the claims file and medical literature the examiner opined that it was less likely than not that the Veteran's depression was caused or aggravated by the service-connected duodenal and gastric ulcer. The examiner reported that there was no objective evidence which reflected that the Veteran’s depression was caused by, resulted from or aggravated by the duodenal ulcer. The examiner cited to medication records that indicated the depressive disorder was complicated by gastric cancer, not the gastric ulcer. Additionally, the examiner reported that the Veteran first sought mental health treatment in 2006 which was precipitated by work and other stressors. The examiner also remarked that it was less likely than not that the Veteran's depression had its onset during service. The examiner noted that the Veteran first sought psychiatric treatment in 2006 where it was noted the condition was due to a lot of stressors at work and work conflicts. The examiner also noted that there was no objective evidence which reflected a diagnosis of depression during active service. The examiner noted that the etiology opinion was based upon a review of the Veteran’s medical records, service treatment records, personnel records, and private treatment records. The examiner also noted a reliance on the DSM-5 as well as the examiner’s training and experience. After a review of the evidence of record the Board finds that the Veteran’s depression has been aggravated, but not caused by, his service-connected gastric cancer. Here, the VA treatment records from 2011 and 2012 clearly indicated that the Veteran’s depression was first diagnosed before the gastric cancer disability, however, his VA mental health providers noted that the depression was s worsened by the gastric cancer. Additionally, while the June 2020 VA examiner opined that depression was not secondary to an ulcer condition, past medical opinions noting that depression was caused or made worse by gastric cancer were referred to in support of examiner’s conclusions. The Board accords the VA examination and the VA providers opinions probative weight because they are supported by an adequate rationale and reviewed the evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). These opinions combine to support a finding that the depressive disorder was aggravated by the Veteran’s service-connected gastric cancer. As such, and resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted on a secondary basis. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dworkin, 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.