Citation Nr: 23001046 Decision Date: 01/06/23 Archive Date: 01/06/23 DOCKET NO. 17-25 539 DATE: January 6, 2023 ORDER Entitlement to a 20 percent rating, but no higher, for duodenal ulcer (ulcer) is granted throughout the appeal period. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, throughout the entire appeal his ulcer disability more nearly approximates continuous moderate symptomatology; his ulcer does not more nearly approximate moderately severe or severe symptomatology. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for the service-connected ulcer have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.114, Diagnostic Code (DC) 7305. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, his wife, and a colleague testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been added to the claims file. The instant matter was remanded in September 2019 and August 2022 for procurement of a new VA examination and issuance of a supplemental statement of the case. The Board finds, as further discussed below, that the examination reports of record are adequate to decide the claim, despite the Veteran's representative's request for a third remand. Thus, the Board finds there has been substantial compliance with the prior remand directives and appellate review is proper at this time. Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, the Veteran has a claim pending in a separate appellate system that includes entitlement to a total disability rating based on individual unemployability (TDIU) due to the combined effects of his service-connected sleep apnea, psychiatric disorder, and ulcer that is pending before the RO. As such, the issue of entitlement to a TDIU will be the subject of a forthcoming RO decision, which the Veteran will be free to challenge in the modernized system if he disagrees with the ruling. Entitlement to an increased disability rating for duodenal ulcer, rated as 10 percent disabling prior to October 11, 2021, and 20 percent disabling thereafter. The Veteran asserts that his duodenal ulcer symptoms including hiccoughs, heartburn, vomiting, and abdominal pain warrant an increased rating. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321 (a), 4.1. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's ulcer disability is rated pursuant to 38 C.F.R. § 4.114, DC 7305. In relevant part, under DC 7305, which addresses duodenal ulcers, a 10 percent rating is assigned where the disability is mild with recurring symptoms once or twice a year. A 20 percent rating is assigned where the disability is moderate, 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 rating is assigned where the disability is moderately severe, which is 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 60 percent (maximum) rating is assigned when the disability is severe 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. The words "mild," "moderate," "moderately severe," and "severe" are not defined in the VA Rating Schedule. 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. 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. The appeal period before the Board stems from the Veteran's claim for an increased rating for his ulcer, which was received by VA on January 3, 2014, plus the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). After a review of the evidence, the Board resolves reasonable doubt in favor of the Veteran and finds that for the entire appeal period his ulcer disability symptoms more nearly approximate continuous moderate symptoms, warranting a rating of 20 percent, but no higher. Regarding the evidence supporting an award of 20 percent for the entire appeal period, the Veteran was afforded VA examinations in January 2015, December 2019, July 2021, October 2021, and August 2022. During the examinations, he was noted to take over the counter medications to treat his symptoms including indigestion, stomach pain, nausea, and vomiting, and his symptoms were described as transient (at best) and continuous (at worst) occurring four or more times a year, but lasting less than a day. Resolving reasonable doubt in the Veteran's favor, the Board finds that taking the Veteran's entire gastrointestinal symptoms into consideration, such more nearly approximate continuous moderate manifestations warranting a 20 percent rating for the entire appeal. Nevertheless, the Board finds that a higher 40 percent rating for moderately severe symptoms or a 60 percent rating for severe symptoms is not warranted. Specifically, incapacitating episodes were not reported or documented during the January 2015, December 2019, July 2021, October 2021, and August 2022 VA examinations. Additionally, the Veteran's available treatment records do not reveal anemia, unintentional weight loss, nor definite impairment in health. To the contrary, throughout the course of the appeal the Veteran was routinely counseled by his treating physicians to lose weight (which generally ranged between 240 and 270 pounds) and he was consistently documented as having denied experiencing abdominal symptoms or vomiting. Further, despite his symptoms, he maintained employment through the bulk of the appeal period as documented by his reports at the March 2019 hearing and submission of lay statements from his co-workers regarding his hiccoughing at work. Moreover, the VA treatment records also document recreational activities of the Veteran such as fishing. Such evidence establishes that the Veteran's symptoms did not manifest so profoundly as to cause incapacitating episodes, anemia, weight loss, or definite impairment of health. In the December 2022 informal hearing presentation from the Veteran's representative, it was argued that the Board should remand the instant matter for a third time for a VA examiner to comment on an August 2022 private opinion finding that the Veteran's symptoms more nearly approximated a 40 percent rating due to incapacitating episodes. The Board notes, however, that the August 2022 VA examiner did indeed note a review of the Veteran's e-folder, which contains the August 2022 private opinion, and there is no suggestion that the VA examiner did not review and consider such. More importantly is the Board's finding that the August 2022 private opinion is entitled to little probative weight, if any. In this regard, the opinion was rendered by a physician assistant who does not treat the Veteran, and unlike the VA examiners, did not review the Veteran's records nor examine him in conjunction with the rendered opinion. Instead, the physician assistant based the entirety of his opinion on an August 2022 statement from the Veteran regarding his symptomatology. Importantly, in this statement the Veteran endorsed symptomology that he routinely denied while receiving treatment, including vomiting multiple times per day. Moreover, the physician assistant apparently also took the Veteran's comments regarding his sleep disorder and psychiatric impairment into account in rendering his opinion that a 40 percent rating was warranted, ignoring the fact the Veteran is already service connected for sleep impairment and psychiatric symptoms, meaning awarding a rating for such under his ulcer rating would constitute impermissible pyramiding. Finally, the Board notes that to the extent the August 2022 private opinion is afforded any probative weight, is less than that afforded the VA examiners' opinions as they interviewed the Veteran, conducted physical examinations of the Veteran, and reviewed his record. Additionally, as a physician assistant, the private clinician has less training and expertise than the January 2015, December 2019, and August 2022 VA examiners, all of whom are medical doctors with greater training and expertise than that of a physician assistant. The Board has considered lay statements from the Veteran, his wife, and his co-workers that his disability is worse than currently evaluated, especially due to his persistent and annoying hiccoughing. The Veteran is competent to report symptoms because this requires only personal observation. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate DCs. Competent evidence concerning the nature and extent of the Veteran's ulcer has been provided by the VA medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated and were rendered by medical professionals proficient in objectively assessing the manifestation of disabilities. As such, the Board finds these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, the Board concludes that a disability rating of 20 percent, but not higher, for the Veteran's service-connected ulcer is warranted for the entirety of the appeal. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Sosna, 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.