Jose F. Rivera-Colon v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-6129

JOSE F. RIVERA-COLON, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 12, 2021 Decided April 11, 2022)

Kenneth M. Carpenter, of Topeka, Kansas, with whom Victoria R. Tamayo, of Largo,

Florida, was on the brief, for the appellant.

Carson M. Garand, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn,

Chief Counsel; Christopher W. Wallace, Deputy Chief Counsel; and Aaron D. Parker, all of

Washington, D.C., were on the brief for the appellee.

Before BARTLEY, Chief Judge, and PIETSCH and LAURER, Judges.

BARTLEY, Chief Judge: Veteran Jose F. Rivera-Colon appeals through counsel a June 12,

2019, Board of Veterans' Appeals (Board) decision denying entitlement to an evaluation in excess

of 10% for service-connected gastritis. Record (R.) at 5-16.1 Specifically, he asserts that the Board

erred because it did not consider whether his gastritis should be referred for extraschedular

consideration under 38 C.F.R. § 3.321(b). Appellant's Br. at 3. This matter was referred to a panel

of the Court, with oral argument, to address whether, and under what circumstances,

extraschedular consideration is available for gastritis evaluated under 38 C.F.R. § 4.114, diagnostic

code (DC) 7307. Because the Board failed to define a key term used to describe impairment under

1

In the same decision, the Board remanded the issues of entitlement to service connection for a bladder

disability and to a compensable evaluation for right ear hearing loss. R. at 12-16. Because a remand is not a final

decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this

time. See Howard v. Gober, 220 F.3d 1341, 1334 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004)

(per curiam order); 38 C.F.R. § 20.1100(b) (2021). In addition, the Board declined to reopen a previously denied

claim for service connection for left ear hearing loss. R. at 10-12. Because Mr. Rivera-Colon has not challenged that

portion of the Board decision, the appeal as to that matter will be dismissed. See Pederson v. McDonald, 27 Vet.App.

276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued and dismissing that portion of the

appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same); see also Appellant's Brief (Br). at 1, n.1 (stating that

he "no longer wishes to pursue this issue").

DC 7307, judicial review is frustrated, and the Court cannot determine whether referral for

extraschedular consideration was warranted in this matter. Consequently, the Court will set aside

the portion of the June 2019 Board decision denying entitlement to a gastritis evaluation in excess

of 10% and remand the matter for further readjudication consistent with this decision. The balance

of the appeal will be dismissed.

I. FACTS

Veteran Jose F. Rivera-Colon served in the U.S. Army from August 1979 to August 1982,

and on active duty with the U.S. Army Reserve from June to November 1991 and from May to

September 1994. R. at 9013, 9056, 10,912.

In June 2014, Mr. Rivera-Colon filed a claim seeking service connection for gastritis as

secondary to medication taken to treat other service-connected conditions. R. at 8756-57. In

November 2015, and after development not at issue here, a VA regional office (RO) granted a 10%

initial evaluation for gastritis under DC 7307, based on evidence of a "sub-mucosal nodule." R. at

8379. In August 2016, he filed a supplemental claim seeking, among other things, an increased

gastritis evaluation. R. at 7373.

In November 2016, Mr. Rivera-Colon underwent a VA stomach and duodenal conditions

examination. R. at 7331-33. The examiner indicated that Mr. Rivera-Colon's symptoms were not

severe and included pronounced, continuous abdominal pain occurring at least monthly and mild

nausea occurring more than four times per year and lasting less than one day. R. at 7332. The

examiner indicated that Mr. Rivera-Colon did not have incapacitating episodes related to any

stomach or duodenal condition and that his gastritis did not impact his ability to work. R. at 7332-

33. The examiner characterized an August 2015 VA endoscopy report as showing "mild gastritis."

R. at 7333.

In December 2016, the RO continued the 10% evaluation for gastritis. R. at 7314 -17. Mr.

Rivera-Colon filed a Notice of Disagreement in January 2017. R. at 7194-95.

In June 2017, while seeking VA treatment for a separate condition, he reported that he

required treatment at an emergency room the previous day because of "acute diarrhea and partial

dehydration." R. at 4826.

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In November 2017, the RO issued a Statement of the Case (SOC), continuing the assigned

10% gastritis evaluation. R. at 7015-49. Mr. Rivera-Colon filed his Substantive Appeal the

following month. R. at 7009.

In August 2018, Mr. Rivera-Colon underwent another VA examination. R. at 4494-500.

He reported persistent heartburn, as well as indigestion and regurgitation. R. at 4494. The

examiner indicated that Mr. Rivera-Colon continued to experience the same symptoms as in

November 2016, with the same frequency, and at the same intensity. R. at 4495 -96. In September

2018, the RO issued a Supplemental SOC (SSOC), continuing the assigned 10% evaluation. R. at

4391-401.

In September 2018, Mr. Rivera-Colon submitted a stomach and duodenal conditions

disability benefits questionnaire (DBQ) completed by a VA physician in August 2018. R. at 3132-

36. The VA physician diagnosed gastroesophageal reflux disease (GERD), gastric polyp, hiatal

hernia, and gastritis with a small submucosal nodule. R. at 3132. The VA physician indicated that

Mr. Rivera-Colon experienced recurring episodes of stomach or duodenal symptoms that, while

not severe, included periodic abdominal pain that is unrelieved by standard ulcer therapy, nausea,

and vomiting, all of which occur at least four times per year and last up to nine days per episode;

periodic hematemesis (vomiting of blood, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 822

(33d ed. 2020)) occurring three times per year and lasting less than a day; and a 22-pound weight

loss from baseline. R. at 3133. The VA physician indicated that Mr. Rivera-Colon has

incapacitating episodes as a result of his condition and had to stop working because of his

symptoms, including nausea and vomiting. R. at 3134-35. In October 2018, the RO issued an

SSOC continuing the 10% evaluation. R. at 3114-29.

In the June 2019 Board decision on appeal, the Board found that a higher schedular

evaluation was not warranted because there was no evidence of multiple small eroded or ulcerated

areas and symptoms, as contemplated by a 30% evaluation under DC 7307, or severe hemorrhages

or large ulcerated or eroded areas, as contemplated by a 60% evaluation under that DC. R. at 9.

The Board also considered evaluating the gastritis under DC 7346, for hiatal hernia, but found that

there was no evidence of persistently recurrent epigastric distress with substernal or arm or

shoulder pain, such as is required for a 30% evaluation under that DC, or material weight loss,

hematemesis, or melena (blood in the feces, see DORLAND'S at 1110) with moderate anemia, or

another symptom combination productive of severe impairment of health, as is required for a 60%

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evaluation. Id. In denying the claim, the Board did not address whether referral for extraschedular

consideration was warranted or consider whether to apply any DCs other than 7307 and 7346. See

R. at 7-9. This appeal followed.

II. ARGUMENTS

A. Initial Arguments

In his brief, Mr. Rivera-Colon argues that the Board's reasons or bases are inadequate

because they do not address whether referral for extraschedular consideration is warranted.

Appellant's Br. at 6. He states that the record reflects "exceptional symptoms, which did not fit

any diagnostic criteria," such as pain unrelieved by standard ulcer therapy, emergency room

treatment for diarrhea, and symptoms of such severity that he can no longer work. Id. at 5 (citing

R. at 3133-35, 4826).

The Secretary counters that the Board need not have addressed referral for extraschedular

consideration because "the functional effects of [Mr. Rivera-Colon's] gastritis disability did not

reasonably raise the issue." Secretary's Br. at 5. The Secretary asserts that the record reflects

"normal complaints" of gastritis symptoms, id. at 7, because, among other things, the symptoms

claimed as exceptional "are all listed as usual symptoms on [the] August 2018 DBQ

exam[ination]," id. at 8. Therefore, the Secretary contends, they fall within the scope of a schedular

evaluation under DC 7307. Id. The Secretary asserts that Mr. Rivera-Colon merely disagrees with

the Board's weighing of the evidence and has not demonstrated clear error in the June 2019

decision. Id.

B. DC 7307 and Supplemental Briefing

Under DC 7307, chronic gastritis "with small nodular lesions, and symptoms," warrants a

10% evaluation. 38 C.F.R. § 4.114 (2021). Chronic gastritis "with multiple small eroded or

ulcerated areas, and symptoms," warrants a 30% evaluation. Id. Chronic gastritis "with severe

hemorrhages, or large ulcerated or eroded areas" warrants a 60% evaluation, which is the

maximum schedular evaluation available under DC 7307. Id. The introduction to § 4.114 specifies

that

[r]atings 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 which reflects th e predominant disability

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picture, with elevation to the next higher evaluation where the severity of the

overall disability warrants such elevation.

Id.

On September 2, 2021, the Court ordered the parties to submit supplemental memoranda

of law to address, among other things, whether the phrase "and symptoms," as used in the rating

criteria for 10% and 30% evaluations under DC 7307, was so all-encompassing as to foreclose any

consideration of an extraschedular evaluation and, if not, how entitlement to an extraschedular

evaluation should be determined.

In his supplemental memorandum of law, Mr. Rivera-Colon asserts, for the first time, that

the "more basic question" at issue is whether a recent revision to 38 C.F.R. § 3.321(b)(1) is a

substantive regulatory change undermining the continuing applicability of Thun v. Peake,

22 Vet.App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 366 (Fed. Cir. 2009), and its

progeny. Appellant's Supplemental (Supp.) Memorandum of Law (MOL) at 6. Before January 7,

2018, "the Under Secretary for Benefits or the Director, Compensation Service, upon field station

submission, [was] authorized to approve" extraschedular evaluations. 38 C.F.R. § 3.321(b)(1)

(2017) (emphasis added). The revised version of the regulation states that "the Director of

Compensation Service or his or her delegate is authorized to approve" extraschedular evaluations.

38 C.F.R. § 3.321(b)(1) (2021). Mr. Rivera-Colon argues that, by removing the phrase "upon field

station submission" from the regulation, the Secretary intended that "extraschedular consideration

is now within the exclusive purview of the Director without a threshold inquiry by the regional

office or the Board and without a referral from either." Appellant's Supp. MOL at 7. In other

words, he asserts that neither the RO nor the Board have any role to play in determining whether

extraschedular evaluations are warranted because the Secretary has "unambiguously and

exclusively delegated the full responsibility to the Director." Id. at 9. Therefore, he argues, Thun

and its progeny are no longer controlling precedent. Id. at 6-7.

As for the question posed in the Court's September 2, 2021, order—whether an

extraschedular evaluation is available when gastritis is evaluated at 10% or 30%—Mr. Rivera-

Colon notes that DC 7307 "does not define the term 'and symptoms,'" id. at 4, and asserts that the

rating schedule is inadequate to rate his specific gastritis disability, id. at 5.

The Secretary agrees that "[t]he assignment of an extraschedular evaluation is possible

when a schedular 10% or 30% evaluation is assigned under DC 7307." Secretary's Supp. MOL at

2. As for the type and severity of symptoms that would warrant an extraschedular evaluation, the

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Secretary hypothesizes that "the Board could determine which symptoms are typically associated

with gastritis by reviewing the DBQs at issue in this matter," thereby determining whether Mr.

Rivera-Colon's symptoms are typical or exceptional. Id. at 4-5.

On September 29, 2021, the Court ordered the Secretary to respond to Mr. Rivera-Colon's

argument regarding the revised version of § 3.321(b)(1) and the continued applicability of Thun

and its progeny. In an October 2021 response, the Secretary noted that nothing in the revision to

§ 3.321(b)(1) addresses "how the issue of an extraschedular [evaluation] comes before the

Director" and, therefore, neither requires VA to alter its current referral process nor invalidates the

Thun line of cases. October Response at 2. The Secretary supports this argument with citation to

VA's comments to the final rule, which expressly contemplate "that the ROs 'should make these

fact-intensive decisions in the first instance.'" Id. at 3 (quoting Extra-Schedular Evaluations for

Individual Disabilities, 82 Fed. Reg. 57,830, 57,833 (Dec. 8, 2017). The Secretary further notes

that "in Long v. Wilkie, the en banc Court considered the amended version of § 3.321(b)(1) when

articulating when referral for extraschedular consideration is warranted. " Id. at 4 (citing

33 Vet.App. 167, 173 (2020), appeal docketed sub nom. Long v. McDonough, No. 21-1669 (Fed.

Cir. Feb. 19, 2021)).

III. ANALYSIS

VA's schedule of disability ratings is based on average impairment in earning capacity in

civil occupations resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a) (2021).

However, in the "exceptional case" where the schedular evaluation is inadequate, VA is authorized

to approve an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1).

The "governing norm" in these exceptional cases is a finding that the veteran's disability

picture is so exceptional or unusual because of factors such as marked interference with

employment or frequent periods of hospitalization that it is impractical to apply the regular

schedular standards. Id. Thus, the first step in determining whether referral for extraschedular

consideration is warranted is determining whether the evidence "presents such an exceptional

disability picture that the available schedular evaluations for that service-connected disability are

inadequate." Thun, 22 Vet.App. at 115; see Long, 33 Vet.App. at 173 (stating that the proper test

for assessing exceptionality remained the "first step" set forth in Thun, 22 Vet.App. at 115). That

in turn, and as relevant in Mr. Rivera-Colon's case, obliges the Board to compare "the level of

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severity and symptomatology of the claimant's service-connected disability with the established

criteria found in the rating schedule for that disability." Thun, 22 Vet.App. at 115.

If the first requirement is satisfied, the Board must then determine whether the veteran's

exceptional disability picture exhibits other related factors such as "'marked interference with

employment' or 'frequent periods of hospitalization.'" Thun, 22 Vet.App. at 116 (quoting 38 C.F.R.

§ 3.321(b)(1)). "[T]he first Thun element compares a claimant's symptoms to the rating criteria,

while the second addresses the resulting effects of those symptoms. " Yancy v. McDonald,

27 Vet.App. 484, 494 (2016). If both these inquiries are answered in the affirmative, the Board

must refer the matter to the Under Secretary for Benefits or the Compensation Service Director for

the third inquiry, that is, a determination of whether, "[t]o accord justice," the veteran's disability

picture requires the assignment of an extraschedular evaluation. Thun, 22 Vet.App. at 111.

A. The Court Declines to Consider the Late-Raised Thun Argument

As a preliminary matter, the Court must address Mr. Rivera-Colon's assertion, raised for

the first time in response to the Court's supplemental briefing order, that Thun and its progeny no

longer apply after the revision to 38 C.F.R. § 3.321(b)(1) that became effective on January 7, 2018.

This is so because if, as Mr. Rivera-Colon asserts, sole authority in such matters now rests with

the Director and his or her delegate, then the Board no longer has jurisdiction over extraschedular

evaluations and, by extension, the Court no longer has jurisdiction to review the Board's alleged

failure to refer a matter for extraschedular evaluation. See 38 U.S.C. § 7252(a) (stating that our

jurisdiction is limited to reviewing decisions of the Board); see also King v. Nicholson,

19 Vet.App. 406, 409 (2006) ("It follows that where the Board does not have subject-matter

jurisdiction, then neither does the Court."). And, because the only argument that Mr. Rivera-Colon

raises on appeal is with respect to the Board's alleged failure to address a reasonably raised

entitlement to referral for extraschedular consideration, if the Board, and by extension the Court,

lacks subject-matter jurisdiction, the Court will have no option but to dismiss his appeal. See

Briley v. Shinseki, 25 Vet.App. 196, 196 (2012) ("[A] matter before this Court that does not present

a live case or controversy must be dismissed for a lack of jurisdiction.").

The Court declines to review this argument because it was first raised in supplemental

briefing ordered after the matter was referred for panel consideration. Th e Court has consistently

discouraged parties from raising new arguments after the initial briefing. See Carbino v. Gober,

10 Vet.App. 507, 511 (1997) (declining to review argument first raised in appellant's reply brief),

7

aff'd sub nom. Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) ("[I]mproper or late presentation

of an issue or argument . . . ordinarily should not be considered."); see also Untalan v. Nicholson,

20 Vet.App. 467, 471 (2006); Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990). Accordingly, the

Court declines to consider this belated argument.

B. Judicial Review Is Frustrated Because a Critical Term Is Undefined

As noted above, a 10% schedular evaluation is assigned under DC 7307 for chronic gastritis

"with small nodular lesions, and symptoms." 38 C.F.R. § 4.114. To recap the parties' arguments,

Mr. Rivera-Colon asserts that the manner in which his gastritis symptoms manifest is exceptional

and exceeds what is contemplated by a 10% schedular evaluation. He asserts that, because those

exceptional symptoms are documented as markedly interfering with his employability (by

rendering him unemployable), the record reasonably raised the matter of entitlement to referral for

extraschedular evaluation such that the Board erred in not addressing the matter in its statement of

reasons or bases. The Secretary counters that Mr. Rivera-Colon's gastritis symptoms are within

the scope of the usual symptoms associated with chronic gastritis with nodules and, therefore, are

not exceptional. And the Secretary argues that, because Mr. Rivera-Colon does not have

exceptional gastritis symptoms, the Board was not required to discuss referral for extraschedular

consideration.

Resolving this dispute requires this Court to consider what the term "symptoms" means

with respect to a schedular evaluation under DC 7307. In its supplemental briefing order, the Court

asked the parties to address whether the term "symptoms" as used in DC 7307 was so broad as to

encompass all possible symptoms and manifestations and foreclose the assignment of an

extraschedular evaluation, rendering § 3.321(b) inapplicable as to that DC. The Secretary responds

that "DC 7307 does not preclude an assignment of an extraschedular evaluation " and that

"[w]hether an extraschedular evaluation is warranted should simply follow the typical analysis

under 38 C.F.R. § 3.321(b) and Thun, as well as the substantial caselaw on this topic that is

sufficient to address this issue." Secretary's Supp. MOL at 3. Mr. Rivera-Colon concurs that

"symptoms," as used in DC 7307, does not foreclose the possibility of an extraschedular

evaluation. Appellant's Supp. MOL at 2. Thus although, as discussed below, the full scope of the

term "symptoms" is not understood, there is no dispute among the parties that it is not all-

encompassing and that extraschedular evaluations are available under DC 7307 when warranted.

In other words, neither party argues that, to resolve this matter, the Court must interpret whether

8

DC 7307 permits extraschedular evaluations. Therefore, and to that limited extent, the Court

accepts the parties' assessment that the term "symptoms" is not so broad as to encompass all

possible symptoms and that extraschedular evaluations are permitted, when warranted, for gastritis

evaluated at any schedular level under DC 7307. 2

As relevant to Mr. Rivera-Colon's appeal, the Secretary asserts that the term "symptoms"

as used in DC 7307 is "broad language" that "encompasses the usual or typical symptoms caused

by or associated with a claimant's gastritis." Secretary's Supp. MOL at 2. The Secretary declines

to "generally speculate as to the type of symptoms under DC 7307 and their severity that may

determine whether an extraschedular evaluation is warranted," id. at 4, but suggests that "the Board

could determine which symptoms are typically associated with gastritis by reviewing the DBQs at

issue in this matter," id. at 4-5. The Secretary further asserts that Mr. Rivera-Colon's symptoms

"are all listed as usual symptoms on [his] August 2018 DBQ exam[ination]." Secretary's Br. at 8

(citing R. at 3133).

There are two primary problems with the Secretary's assertions. First, the Board did not

explain how it determined what the usual symptoms of gastritis are. See OA at 28:07-28:13,

Rivera-Colon v. McDonough, U.S. Vet. App. No. 19-6129 (oral argument held October 12, 2021)

(conceding that the Board did not discuss or explain the typical or usual symptoms of gastritis).

In fact, although the Board listed the symptoms reported during VA treatment, on VA examination

reports, and on the August 2018 DBQ completed by a VA physician, its subsequent analysis was

limited to whether Mr. Rivera-Colon demonstrated the small eroded or ulcerated areas or severe

hemorrhages necessary—in addition to "symptoms"—for a higher schedular evaluation under DC

7307 or whether he had the enumerated symptoms necessary for a higher schedular evaluation

under DC 7346, for hiatal hernia. R. at 8-9. Moreover, the Board did not explain what the usual

symptoms of gastritis are nor did it explain what about gastritis symptoms generally—or Mr.

Rivera-Colon's gastritis symptoms in particular—led it to consider evaluating the condition as a

hiatal hernia under DC 7346, but no other DCs. Thus, to the extent that the Secretary suggests that

the Board could have looked to the standard DBQ form to determine what the typical symptoms

of gastritis are and whether Mr. Rivera-Colon's gastritis symptoms fall within that penumbra, it is

not apparent that the Board did so. Consequently, the Secretary's suggestion is nothing more than

2

Indeed, to hold otherwise would render § 3.321(b)(1) superfluous with respect to DC 7307, an interpretation

this Court must avoid. See Jensen v. Shulkin, 29 Vet.App. 66, 74 (2017).

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a post-hoc rationalization that the Court cannot consider. See In re Lee, 277 F.3d 1338, 1345-46

(Fed. Cir. 2002) ("'[C]ourts may not accept appellate counsel's post-hoc rationalizations for agency

action.'"); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) ("[I]t is the Board that is required to provide

a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do

so.").

Second, the Court has previously cautioned that "[i]t is VA's responsibility to define the

terms contained within its regulations." Ortiz-Valles v. McDonald, 28 Vet.App. 65, 72 (2016); see

also Ray v. Wilkie, 31 Vet.App. 58, 62 (2019) (holding "that VA's refusal to define key terms in [a

regulation] frustrates judicial review"); Johnson v. Wilkie, 30 Vet.App. 245, 247 (2018) (holding

that judicial review was frustrated because the Board failed to define terms in the DC for

migraines); Cantrell v. Shulkin, 28 Vet.App. 382, 392-93 (2017) (holding that it is VA's

responsibility to define what is meant by employment "in a protected environment"). The Court

concludes that the landscape here is no different.

The Secretary avers that DC 7307 "necessarily contemplates the usual and typical

symptoms and effects commonly associated with" gastritis because "each diagnostic code

reasonably contains the full range of symptoms usually associated with or caused by the disability."

Secretary's Supp. MOL at 5 (citing Long, 33 Vet.App. at 173). By implication, then, symptoms

that are unusual or atypical for gastritis may warrant referral for consideration of an extraschedular

evaluation. The problem in Mr. Rivera-Colon's case is that the Court has no way of knowing what

those usual or typical symptoms of gastritis are because VA has not defined them.

The Secretary's suggestion that the Court look to the symptoms listed on the August 2018

DBQ does not resolve this quandary because the DBQ is, on its face, not specific to gastritis. See

R. at 3132 (identifying DBQ as applicable to stomach and duodenum conditions, generally). While

the symptoms listed, including any identified as present in Mr. Rivera-Colon's case, may be usual

or typical within the broad spectrum of stomach or duodenum conditions, there is no indication on

the form as to which symptoms are usual or typical for gastritis specifically. In fact, gastritis is

not one of the specific stomach or duodenum conditions enumerated in "Section I" of the DBQ,

id., but is listed among several "other conditions" under "Section V," R. at 3134, which falls after

"Section III" listing the signs and symptoms of stomach and duodenum conditions, R. at 3133.

Thus, based on the structure of the DBQ, it is not clear that the signs and symptoms identified in

Section III pertain to the "other conditions," including gastritis, that are not enumerated until

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Section V. Accordingly, the Court is not persuaded by the Secretary's suggestion that the

symptoms identified in Section III should be construed as the usual a nd typical symptoms of

gastritis contemplated by the schedular rating criteria under DC 7307.

And as to Mr. Rivera-Colon's gastritis disability, the picture is further complicated because

the VA physician diagnosed Mr. Rivera-Colon with several additional disabilities, including

GERD, gastric polyp, and hiatal hernia, R. at 3132, but did not specify which symptoms were

associated with which diagnoses. And although the Board found that all identified signs and

symptoms were "relevant" to its analysis, R. at 9, it did not explain whether that was so because

the symptoms were all attributed to gastritis or because all the diagnosed conditions were, in some

manner, associated with the service-connected gastritis disability (and, if so, whether Mr. Rivera-

Colon was entitled to a higher evaluation based on the rating criteria for one of the other diagnosed

conditions). Regardless, neither the structure of the DBQ itself, nor the way it was completed by

the VA physician, nor how it was evaluated by the Board supports the Secretary's suggestion that

the symptoms identified in Section III of the stomach and duodenum conditions DBQ should be

considered the usual and typical symptoms associated with gastritis for the purpose of determining

whether referral for an extraschedular evaluation is warranted based on the criteria in DC 7307.

Ultimately, although the Secretary confirms that extraschedular evaluations may be

available for conditions evaluated under DC 7307, and that the term "symptoms" as used in the

10% and 30% schedular evaluations refers to the usual or typical symptoms associated with

gastritis, VA has not defined what those usual and typical symptoms of gastritis are or whether

10% and 30% evaluations contemplate different symptoms. And the Board did not explain in its

reasons or bases how it reached its implicit finding that Mr. Rivera-Colon's gastritis symptoms

were not exceptional. Consequently, judicial review is frustrated, and the Court is unable to

determine whether, as Mr. Rivera-Colon asserts, the record reasonably raised the question of

entitlement to referral for extraschedular consideration. See 38 U.S.C. § 7104(d)(1); Allday v.

Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

Accordingly, the matter will be remanded. See Tucker v. West, 11 Vet.App. 369, 374 (1998)

(holding that remand is the appropriate remedy "where the Board has incorrectly applied the law,

failed to provide an adequate statement of reasons or bases for its determinations, or where the

record is otherwise inadequate").

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Per Quirin, the Court will provide additional guidance to the Board. See Quirin v. Shinseki,

22 Vet.App. 390, 396 (2009). Because the term "symptoms" was not defined for the purpose of

DC 7307, the DC assigned for Mr. Rivera-Colon's gastritis, he did not receive notice as to what

was encompassed by—or excluded from—the 10% schedular evaluation assigned. If, on remand,

the Board determines that certain symptoms (or other diagnoses, on a second ary basis) are

attributable to Mr. Rivera-Colon's service-connected gastritis, and those symptoms or diagnoses

would entitle him to a higher schedular evaluation under DC 7307 or another DC, it must consider

whether a higher schedular evaluation is warranted.3 See Morgan v. Wilkie, 31 Vet.App. 162, 168

(2019) ("VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for

rating a disability before the extraschedular analysis is triggered.").

IV. CONCLUSION

Upon consideration of the foregoing, the portion of the June 12, 2019, Board decision

denying entitlement to an evaluation in excess of 10% for service-connected gastritis is SET

ASIDE, and the matter is REMANDED for further development, if necessary, and readjudication

consistent with this decision. The remainder of the Board decision is DISMISSED.

3

The Court notes that, under a proposed revision to 38 C.F.R. § 4.114, gastritis would be evaluated as peptic

ulcer disease under a retitled DC 7304 that would, among other things, assign a minimum 20% evaluation for episodes

of abdominal pain, nausea, or vomiting that last for at least three consecutive days and are managed by daily prescribed

medication. 87 Fed. Reg. 1522-01 (Jan. 11, 2022).

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