PEPTIC ULCER DISEASE

JONATHAN B. KRAMER · 2026 · Case ID: A26030787

MIXED

Summary

The veteran, who served in the United States Marine Corps from June 1969 to December 1970, appeals a September 2022 rating decision. The appeal concerns entitlement to an increased disability rating for a service-connected gastric ulcer and service connection for a hiatal hernia and otitis media with bilateral hearing loss. The Board previously granted an increased rating for the gastric ulcer in a February 2025 decision, but this was not disturbed by a subsequent joint motion for partial remand from the Court of Appeals for Veterans Claims (CAVC) in November 2025. The CAVC remanded the hiatal hernia and otitis media claims due to pre-decisional duty to assist errors. For the gastric ulcer, the veteran sought a rating higher than the 20 percent (prior to May 19, 2024) and 40 percent (from May 19, 2024) assigned by the Board. The Board found that the evidence did not support the higher ratings, noting that the evidence persuasively weighed against the claim and the benefit of the doubt doctrine was inapplicable. The hiatal hernia claim was remanded for an addendum VA medical opinion to address whether the hernia is aggravated by the service-connected gastric ulcer, as the initial opinion was deemed inadequate. The otitis media claim was remanded due to the VA's failure to obtain private treatment records from community care providers, which constituted a pre-decisional duty to assist error.

Rationale

Veteran sought increased rating for gastric ulcer.; Board previously increased rating to 20% (pre-May 19, 2024) and 40% (post-May 19, 2024).; Evidence persuasively weighed against claim for higher rating; benefit of doubt doctrine not applicable.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7304

Docket No.

221005-283901

Full Decision Text

Citation Nr: A26030787
Decision Date: 04/03/26 Archive Date: 04/03/26

DOCKET NO. 221005-283901
DATE: April 3, 2026

ORDER

Entitlement to a disability rating in excess of 20 percent prior to May 19, 2024, and 40 percent thereafter, for a gastric ulcer (previously rated as gastritis, alcoholic, with prominent gastric mucosal folds), is denied.

REMANDED

Entitlement to service connection for a hiatal hernia is remanded.

Entitlement to a compensable disability rating for otitis media, serous, status post myringotomy, with bilateral hearing loss is remanded.

FINDING OF FACT

Throughout the appeal, the service-connected gastric ulcer was manifested by a

condition with predominately moderate symptoms with episodes of severe

symptoms recurring 4 or more times a year, and averaging 10 days in duration.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for the period on appeal prior to May 19, 2024, and 40 percent thereafter, for a gastric ulcer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.27, 4.114, Diagnostic

Code 7304.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from June 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the October 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran provided testimony at a September 2024 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder.

The Board may only consider the evidence of record at the time of the September 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims for entitlement to service connection for hiatal hernia and entitlement to increased disability rating for otitis media, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

This matter was previously before the Board. After the submission of the October 2022 VA Form 10182, the Board issued a February 2025 decision. That decision granted the Veteran's claim for increased disability rating for gastric ulcer and denied the Veteran's claims for service connection for hiatal hernia and increased disability rating for otitis media. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In November 2025, the CAVC granted a joint motion for partial remand (JMPR), finding that the Board erred when it failed to remand the claims for entitlement to service connection for hiatal hernia and increased disability rating for otitis media to correct multiple pre-decisional duty to assist errors. The Board's decision to grant an increased rating for gastric ulcer was not disturbed by any portion of the JMPR.

Entitlement to an increased disability rating for a gastric ulcer (previously rated as gastritis, alcoholic, with prominent gastric mucosal folds)

The Veteran seeks an increased disability rating for his service-connected gastric ulcer.

Disability ratings are determined by evaluating the extent to which a
Veterans Claims (CAVC). In November 2025, the CAVC granted a joint motion for partial remand (JMPR), finding that the Board erred when it failed to remand the claims for entitlement to service connection for hiatal hernia and increased disability rating for otitis media to correct multiple pre-decisional duty to assist errors. The Board's decision to grant an increased rating for gastric ulcer was not disturbed by any portion of the JMPR.

Entitlement to an increased disability rating for a gastric ulcer (previously rated as gastritis, alcoholic, with prominent gastric mucosal folds)

The Veteran seeks an increased disability rating for his service-connected gastric ulcer.

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

The Veteran's gastric ulcer is currently rated under Diagnostic Code 7304 for peptic ulcer disease. 38 C.F.R. § 4.114. In its February 2025 decision, the Board increased the assigned disability rating to 20 percent prior to May 19, 2024 and to 40 percent from May 19, 2024. The staged rating was assigned due to a change in the rating criteria for peptic ulcer disease, as the amended rating criteria had an effective date of May 19, 2024.

Under the former criteria, a 10 percent rating is assigned for mild gastric ulcers with symptoms recurring once or twice a year. Moderate symptoms with episodes of severe symptoms, recurring two or three times a year, and averaging 10 days in duration; or with continuous moderate manifestations are assigned a 20 percent rating. A 40 percent rating is given when ulcers result in moderately severe disability with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging about 10 days or more in duration at least four or more times a year. Finally, a schedular maximum 60 percent evaluation is warranted for 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 C.F.R. § 4.114, Diagnostic Code 7304.

Under the amended criteria in Diagnostic Code 7304, a 20 percent evaluation is

warranted for episodes of abdominal pain, nausea, or vomiting, that: last for at

least three consecutive days in duration; occur three times or less in the past 12

months; and are managed by daily prescribed medication; a 40 percent evaluation

is warranted for episodes of abdominal pain, nausea, or vomiting, that: last for at

least three consecutive days in duration; occur four or more times in the past 12

months; and are managed by daily prescribed medication; a 60 percent evaluation

is warranted for continuous abdominal pain with intermittent vomiting, recurrent

hematemesis (vomiting blood) or melena (tarry stools); and manifestations of

anemia which require hospitalization at least once in the past 12 months; and a 100

percent evaluation is warranted for post-operative for perforation or hemorrhage,

for three months. 38 C.F.R. § 4.114, Diagnostic Code 7304.

The Board notes that, although this issue was not vacated by the November 2025 CAVC decision and is therefore properly before the Board, the November 2025 JMPR identified no error in the Board's February 2025 decision with regard to this issue. Moreover, the Veteran's representative has submitted no argument identifying any error in the Board's February 2025 decision with regard to this issue.

Therefore, for the reasons identified in the Board's February 2025 decision, the Board finds that a disability rating in excess of 20 percent prior to May 19, 2024, and 40 percent thereafter, for the service-connected gastric ulcer is not warranted.

In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see
the Board's February 2025 decision with regard to this issue. Moreover, the Veteran's representative has submitted no argument identifying any error in the Board's February 2025 decision with regard to this issue.

REASONS FOR REMAND

Entitlement to service connection for a hiatal hernia is remanded.

The Veteran contends that his hiatal hernia is secondary to his service-connected gastric ulcer. Specifically, the Veteran contends that his hiatal hernia is related to the damage caused by the acid reflux associated with his gastric ulcer.

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).

Service connection on a direct basis generally requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for a disability which is due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability either (a) caused, or (b) aggravated, the nonservice-connected disability. 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

In light of the CAVC decision and a review of the record, the Board finds that remand to correct a pre-decisional duty to assist error is necessary before the Board may adjudicate the merits of the appeal. 38 C.F.R. § 20.802.

The Veteran underwent a VA examination in August 2022. The Veteran was examined in-person, and a review of the VA e-folder was noted. A diagnosis of hiatal hernia was noted. The examiner opined that this condition was less likely than not the result of the Veteran's service-connected gastric ulcer. The following rationale was provided:

Hiatal hernia occurs when a portion of the stomach protrudes through the diaphragm opening for the esophagus into the chest. Exact cause of hiatal hernia is unknown and is thought to be related to weakness of the supporting tissues. Risk factors for developing hiatal hernia are age over 50, smoking and obesity. Hiatal hernia can be a congenital condition. (Mount Sinai, 2022) A study published in the BMC Gastroenterology (2008), "No association was found between the volume of alcohol drunk per day and the increased risk of hiatal hernia." Having prominent gastric mucosal folds is caused by chronic irritation of the gastric mucosal layer or hypoproteinemia. The enlarged folds within the stomach would not cause hiatal hernia

For a VA medical opinion regarding secondary service connection to be considered adequate, it must address both causation and aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Here, the CAVC determined that while the opinion addressed whether the Veteran's hernia was caused by his service-connected

Accordingly, the Board finds that remand is warranted to correct this error by obtaining an addendum opinion.

Entitlement to an increased compensable evaluation for otitis media, serous, status post myringotomy, with bilateral hearing
caused by chronic irritation of the gastric mucosal layer or hypoproteinemia. The enlarged folds within the stomach would not cause hiatal hernia

Accordingly, the Board finds that remand is warranted to correct this error by obtaining an addendum opinion.

Entitlement to an increased compensable evaluation for otitis media, serous, status post myringotomy, with bilateral hearing loss is remanded.

The Veteran seeks an increased disability rating for his service-connected otitis media with bilateral hearing loss.

The VA treatment records reference several referrals made to community care audiologists and ENT providers. The records from those visits were then obtained by VA providers and referenced in later VA treatment records, but they do not appear to be associated with the claims file. These records include a January 2020 audiogram and records from appointments with private clinicians in November 2020 and April 2022.

The Department of Veterans Affairs (VA) has a statutory duty to assist, to include making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). For a compensation claim, this duty includes obtaining relevant records "from non-VA facilities providing examination or treatment at VA expense." 38 U.S.C. § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2), (3). "VA will end its efforts to obtain [such] records...only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile," such as when "the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them." 38 C.F.R. § 3.159 (c)(2). If VA is unable to obtain those records after making reasonable efforts to do so, VA must notify the claimant of that fact. 38 C.F.R. § 3.159(e)(1). Additionally, VA is required to attempt to obtain VA medical records "without consideration of their relevance." Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016).

The CAVC explained that it is unclear from the record what efforts were made to obtain these records, and if such efforts were made, there is no notification to the Veteran that the records were unobtainable. This failure to obtain records of treatment provided or paid for by VA constitutes a pre-decisional duty to assist error.

Accordingly, remand is warranted for the AOJ to correct its pre-decisional duty to assist error in failing to acquire the identified private records.

The matters are REMANDED for the following action:

1. Arrange for a full review of the Veteran's claims file by a VA medical examiner. If the VA examiner determines that additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled.

2. After completing the above, the examiner is asked to opine on the following:

(a.) Is the Veteran's hiatal hernia approximately at least as likely as likely as not aggravated by the Veteran's service-connected gastric ulcer? In answering, the examiner is asked to address the Veteran's specific contentions regarding the effects of acid reflux associated with his service-connected gastric ulcer.

3. The examiner is asked to accompany each opinion with a detailed rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to provide a complete explanation as to why this is so.

4. Attempt to obtain the Veteran's treatment records from the private facilities to which the Veteran was referred for treatment for otitis media and associated hearing loss. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. If such a determination is made, a memorandum documenting the determination must be associated with the claims file. Notify the Veteran of any inability to obtain these records, in accordance with 38 C
opinion without resorting to speculation, the examiner is asked to provide a complete explanation as to why this is so.

5. Take any additional development deemed necessary and readjudicate the appeal.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Utter, Margaret M.

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.

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