Citation Nr: 18160560
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 04-04 156
DATE:	December 27, 2018
REMANDED
The motion to revise an August 29, 1972, rating decision that denied service connection for an acquired psychiatric disorder is remanded.  
The application to reopen the claim for service connection for an acquired psychiatric disorder is remanded.
Entitlement to an increased rating for a duodenal ulcer in excess of 30 percent is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disability  is remanded.
REASONS FOR REMAND
The Veteran had active service from January 1970 to January 1971.   

This matter comes before the Board of Veterans’ Appeals (Board) from decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

The extensive procedural history of this case has been set forth in prior Board decisions and will not be repeated except as needed to explain the procedural posture of this case.  

In part, an August 2017 Board decision addressed the claim for an increased evaluation for a duodenal ulcer, evaluated as 10 percent disabling prior to January 6, 2003, and as 20 percent thereafter, including an earlier effective date for the 20 percent rating.  The Board found that a rating of no more than 30 percent for duodenal ulcer disease were met; and also found that the criteria for an effective date no earlier than January 6, 2002, for a 30 percent rating for service-connected duodenal ulcer disease were met.  The issue of entitlement to a TDIU rating was remanded.  

A September 2017 rating decision effectuated the grant of a 30% rating for duodenal ulcer disease, effective January 6, 2002, and confirmed and continued the denial of a TDIU rating.  A Supplemental Statement of the Case (SSOC) in September 2017 addressed the claim for a TDIU rating.  

The Veteran appealed the August 2017 decision to the United States Court of Appeals for Veterans Claims (Court) which in a June 2018 Order vacated the Board decision as to the matter identified in a Joint Motion for Partial Remand (JMR).  In a footnote of that JMR it was stated that “[t]he Board granted entitlement to a 30% rating for the duodenal ulcer disease effective January 6, 2002 [and] [t]o that extent, the Board’s decision is favorable to Appellant and is not subject to review.”  

However, the JMR stated that as to issue of an increased rating for “duodenal ulcer disease with gastritis” the Board provided “an inadequate statement of reasons or bases for its finding that a rating greater than 30% was not warranted.”  

The JMR noted that the disability was rated as gastritis under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7307 which provided for a 30% rating for gastritis with small eroded or ulcerated areas and a 60% rating for gastritis with large ulcerated or eroded areas.  The JMR stated that: 

The Board noted that a September 2002 treatment note recorded erosions with gastritis.  (R. at 39 (Board decision at 38) (citing (R. at 2886 (9/5/02 surgeon’s post-operative note procedure)))) [sic].  The Board reasoned that, if an area of erosion were large, the examiner would have documented that it was large instead of merely noting its existence.  (R. at 39 (Board decision at 38)).  That conclusion requires some medical context.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  The Board provided no foundation or evidence to support this inference, and so the statement of reasons or bases is inadequate on this point.  Fountain, 27 Vet.App.at 273. 

Thus, it was requested that the Court vacate that part of the Board decision that denied entitlement to a rating in excess of 30% for a duodenal ulcer disease.  There was no request to vacate that portion of the Board decision addressing the effective date of January 6, 2002, for a 30% rating.  

The August 2017 Board decision remanded the claim for a TDIU rating in light of the grant of an increased rating for duodenal ulcer disease to 30%, which is the Veteran’s only service-connected disorder, for readjudication on an extraschedular basis.  

In this regard, a December 2, 2017, denied reopening of a claim for service connection for an acquired psychiatric disorder, because at the time of the August 29, 1972, rating decision a psychiatric disorder:

was shown not to be aggravated beyond normal progression by [] active military service.  It was reported that [the Veteran] experience[d] mental illness prior to service and therefore was not caused by service.  We received [] current treatment records; however, there are no records to show that [] miliary service caused [the claimed] mental illness.   

The December 15, 2017 Board decision noted that: 

Although the RO had denied an application to reopen of a claim for service connection for a psychiatric disorder, this does not resolve the motion [in an October 29, 2017, VA Form 21-526b, Supplemental Claim for Compensation] to revise the August 1972 RO denial of service connection for a psychiatric disorder on the basis of alleged CUE.  

… if the Veteran were to be retroactively service-connected for a psychiatric disorder (which the Board noted in August 2017 he had at times refused to acknowledge having), then it is possible that the Veteran could be entitled to a TDIU rating on a schedular basis (depending upon any retroactive evaluation which could potentially be assigned). 

In other words, the outcome of the motion to revise the August 1972 RO denial of service connection for a psychiatric disorder could impact the Veteran's claim for a TDIU rating.  Thus, adjudication of the claim for a TDIU rating must be deferred pending adjudication of the motion to revise the August 1972 RO denial of service connection for a psychiatric disorder. 

A February 8, 2018, rating decision denied a motion to revise the August 29, 1972, rating decision which denied service connection for an acquired psychiatric disorder, finding no CUE in that decision.  

A February 8, 2018, Supplemental Statement of the Case (SSOC) addressed the claim for a TDIU rating.  

A VA Form 21-0958, Notice of Disagreement (NOD), dated November 7, 2018, was received that month as to the rating decision which denied the motion to revise the August 1972 denial of service connection for an acquired psychiatric disorder on the basis of CUE.  

A VA Form 21-0958, NOD, dated November 7, 2018, was received that month as to the rating decision which denied reopening of the claim for service connection for an acquired psychiatric disorder.  

However, no Statement of the Case (SOC) has been issued addressing these matters.  When there has been an RO adjudication of a claim and a NOD has been filed thereto, the appellant is entitled to an SOC, and the RO's failure to issue an SOC is a procedural defect requiring remand.  Manlincon v. West, 12 Vet. App. 238 (1999).  

Moreover, as noted in the August 2017 Board remand, the outcome of the motion to revise the August 29, 2917, rating denying service connection for a psychiatric disorder could impact upon the outcome of the claim for a TDIU rating.  Also, the same is true as to the application to reopen service connection for a psychiatric disorder.  

Accordingly, the RO must issue SOCs as to both of these matters to allow the Veteran to perfect appeals as to these two matters.  Adjudication of the claim for a TDIU rating must be deferred pending this development, as well as the development as to the claim for an increased rating for duodenal ulcer disease.  

As to the claim for an increased rating for duodenal ulcer disease, in light of the JMR, the case must be remanded to determine the “medical context” with respect to the September 2002 VA outpatient treatment note, when the Veteran had a polyp removed from his colon, which reflects that an esophagoduodenoscopy (EGD) had revealed gastritis with erosions.  

The case should be reviewed by an appropriate VA clinician to determine, if possible, whether for the next higher rating of 60 % under the rating criteria at 38 C.F.R. § 4.114, Diagnostic Code 7307 (gastritis) the Veteran had either severe hemorrhages; or large areas of gastric ulceration or erosions (and a 30% rating encompasses multiple small eroded or ulcerated areas, and symptoms); or under Diagnostic Code 7305 (duodenal ulcer) the Veteran had a severe 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.  In this regard, the examining clinician’s attention is drawn to the extensive recitation of the evidence set forth in the August 15, 2017 Board decision.
In recent pleadings the Veteran’s attorney has argued that there must be more than just evidence of erosion or ulceration and that a description of whether such an involved area is “large” is one requiring explanation.  
The matters are REMANDED for the following action:
1.  The AOJ should issue an SOC addressing whether there was CUE in an August 29, 1972, rating decision in denying service connection for an acquired psychiatric disorder.  The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.  
2.  Thereafter, the Veteran and his attorney should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto.  The AOJ should advise the Veteran and his attorney that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the SOC unless the appeal is perfected by the timely filing of a substantive appeal. 

3.  The AOJ should issue an SOC addressing whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder.  The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.  

4.  Thereafter, the Veteran and his attorney should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto.  The AOJ should advise the Veteran and his attorney that the claims file will not be returned to the Board for appellate consideration of this particular issue following the issuance of the SOC unless the appeal is perfected by the timely filing of a substantive appeal.  

5.  The Veteran should be afforded an appropriate VA gastrointestinal examination for the purpose of determining the current severity of his service-connected duodenal ulcer disease.  

Additionally, the examiner should review the claim file for the purpose of providing an opinion as to whether the Veteran has ever had: 

(a)	severe hemorrhages; or, 

(b)	or large areas of gastric ulceration or erosions; or, 

(c)	 a severe 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.

If it is determined that there are or were an area or areas of ulceration or erosion at any time since January 2002, please explain why any such area(s) are characterized or classified as “small” or as “large.”  

The attention of the reviewing clinician is drawn to the extensive clinical history recited in the August 15, 2017, Board decision.  

The reviewing clinician is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.  If any requested opinion cannot be made without resort to mere speculation, this must also be fully explained.

6.  Thereafter, readjudicate the claim of entitlement to a TDIU rating, to include potential entitlement on an extraschedular basis.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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