Citation Nr: 1401715 Decision Date: 01/13/14 Archive Date: 01/31/14 DOCKET NO. 06-22 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for residuals of gall bladder removal surgery, including dumping syndrome, prior to June 26, 2013, and in excess of 40 percent after June 26, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1988 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the St Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In an October 2008 rating decision the RO granted an increased 30 percent rating effective from June 9, 2003, the date of the original claim. An October 2013 rating decision granted entitlement to an increased 40 percent rating effective from June 26, 2013. The rating issue on appeal was remanded by the Board for additional development in September 2010, February 2013, and August 2013. The Veteran provided additional evidence in support of her appeal in November and December 2013. In a statement signed on October 30, 2013, her service representative waived agency of original jurisdiction review of any subsequently provided evidence. But see 38 C.F.R. § 20.1304 (2013). The Board finds the case has been adequately developed for appellate review. This appeal was processed using the VBMS and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The evidence demonstrates that prior to June 26, 2013, the Veteran's service-connected residuals of gall bladder removal surgery, including dumping syndrome, were manifested by no more than severe symptoms associated with removal of the gall bladder. 2. The objective medical evidence demonstrates that after June 26, 2013, the Veteran's service-connected residuals of gall bladder removal surgery, including dumping syndrome, were manifested by no more than a moderate dumping syndrome disability associated with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals; the Veteran's lay statements include reports of increased symptoms with diarrhea and weight loss. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for residuals of gall bladder removal surgery, including dumping syndrome, prior to June 26, 2013, and in excess of 40 percent after June 26, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.114, Diagnostic Codes 7308, 7318 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claim by correspondence dated in May 2004 and May 2008. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, and the Veteran's statements in support of her claim. The development requested on remand in September 2010, February 2013, and August 2013 has been substantially completed. It is significant to note that in accordance with the remand directives the Veteran was requested, in essence, to identify pertinent medical treatment she had received and to provide copies of any such records or to provide authorization for VA to assist her in obtaining them. VA correspondence dated in September 2013 specifically requested that she provide this information; however, her subsequent correspondence includes no response to this request. The Board finds that there is no indication that the Veteran has, in fact, received additional medical treatment pertinent the disability at issue nor that any existing treatment records include information pertinent to her appeal. Further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating 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 percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2013). VA regulations provide that there are various postgastrectomy symptoms which may occur following anastomotic operations of the stomach. When present, those occurring during or immediately after eating and known as the "dumping syndrome" are characterized by gastrointestinal complaints and generalized symptoms simulating hypoglycemia; those occurring from 1 to 3 hours after eating usually present definite manifestations of hypoglycemia. 38 C.F.R. § 4.111 (2013). For purposes of evaluating conditions of the digestive system, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2013). There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding. 38 C.F.R. § 4.113 (2013). VA regulations provide that ratings 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 the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (2013). For postgastrectomy syndromes, a 60 percent rating is provided for severe disabilities associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia, a 40 percent rating is provided for moderate disabilities associated with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss, and a 20 rating is provided for mild disabilities associated with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. 38 C.F.R. § 4.114, Diagnostic Code 7308 (2013). For removal of gall bladder, a 30 percent rating is provided with severe symptoms, a 10 percent rating is provided with mild symptoms, and 0 percent rating is provided when the disability is nonsymptomatic. 38 C.F.R. § 4.114, Diagnostic Code 7318 (2013). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2013). Factual Background and Analysis Service treatment records show the Veteran underwent a cholecystectomy in October 1999 and removal of a stomach mass consistent with ectopic pancreatic tissue in December 1999. Upon separation examination in January 2000, her weight was 144 pounds (lbs). A January 2000 report of medical assessment noted the Veteran had residual/subsequent dumping syndrome secondary to antral gastrectomy with symptoms of nausea and dizziness that were improved with increased frequency of small meals. It was noted she denied abdominal pain, blood per rectum, and melena. An August 2004 VA examination report noted that the Veteran complained of dumping syndrome since December 1999 with nausea, vomiting, lightheadedness, and abdominal cramps that began between 10 to 60 minutes after eating. It was noted she stated this occurs approximately 5-10 times a week and that she did not have any inciting factors or any other relating factors that may cause her to have symptoms. She stated the disorder limited her activity, that she did not go out for many social events, and that she had left work several times due to the disorder. The examiner noted the Veteran was 27 to 28 weeks pregnant at the time of the examination. Her dumping syndrome was found to be secondary to her abdominal surgery in service. The RO granted service connection for residuals of gall bladder removal surgery, including dumping syndrome, in an October 2004 rating decision. A 10 percent rating was assigned effective from June 9, 2003, the date of the original claim, under the provisions of Diagnostic Code 7318. In her May 2004 notice of disagreement the Veteran asserted that her disability was severe and that a higher rating was warranted. She stated, in essence, that the examiner's report of dumping syndrome episodes approximately 5-10 times per week was incorrect and that she experienced episodes 7-21 times per week. She reported that she had left work because of her symptoms. VA treatment records dated in April 2006 noted the Veteran complained of daily diarrhea and state that it occasionally occurred 3-4 times per day. The reports also noted she had "cbc microcytic anemia" that was mild and associated with heavy menses. On VA examination in May 2008 the Veteran complained that because of her dumping syndrome she had to eat small frequent meals, and even with that she had exceedingly over active bowels having to stool very shortly after a meal and then almost every 30 to 60 minutes thereafter. She also complained of lower gastrointestinal gas and pressure. It was noted she worked as a lead information technology technician, so she could get up and go to the restroom whenever necessary, but that the disorder was definitely affecting her ability to perform on the job or to engage in athletic activities. It was also noted that she reported she did not like to take medication and was not taking anything for her symptoms. She was noted to have been employed fulltime and to have lost one week from work during last 12-month period. The examiner found her dumping syndrome, post cholecystectomy/enteropancreatic head resection had significant effects on her usual occupation with work interrupted frequently by excess lower gastrointestinal gas and frequent stooling. The effects of the problem on her usual daily activities for chores, shopping, and feeding was mild, for exercise, recreation, traveling, and toileting was moderate, and for sports was severe. The examiner further noted that her life was significantly inhibited by frequency of stooling and lower gastrointestinal gas. An associated headache examination report noted her weight was 158 lbs and that there had been no change. The RO granted an increased 30 percent rating for residuals of gall bladder removal surgery, including dumping syndrome, in October 2008. The rating was assigned effective from June 9, 2003, the date of the original claim, under the provisions of Diagnostic Code 7318. A November 2010 VA examination report noted the Veteran underwent a cholecystectomy and later had a mass removed from the gastric area which removed the pyloric sphincter muscle resulting in dumping syndrome. The postoperative symptoms included colic or other abdominal pain that was daily and severe, distension, and nausea that was daily and moderate, and vomiting that was daily and mild. It was noted that she had diarrhea and vomiting almost daily. The disorder was noted to be stable with no current treatment. There was no evidence of malnutrition and her weight was reported as 152 lbs with no weight change. She was also noted to have been employed fulltime and to have lost less than one week from work during last 12-month period. The diagnosis was status post cholecystectomy with dumping syndrome. The disorder was noted to have significant effects on her usual occupation due to diarrhea. The effects of the problem on her usual daily activities for exercise, sports, recreation, traveling and feeding were mild and for toileting was moderate. In a January 2012 addendum the examiner found that based upon a review of the record the Veteran did not have symptomatology associated with circulatory symptoms after meals, weight loss, nausea, sweating, hypoglycemic symptoms, malnutrition, or anemia. In correspondence dated in June 2013 the Veteran, in essence, stated that the residuals of her gall bladder removal surgery, including dumping syndrome, were worse than indicated by the November 2010 VA examination findings. She reported having daily symptoms of severe stomach pain, explosive diarrhea, nausea and/or vomiting, lightheadedness, dizziness, racing heart, shortness of breath, weakness, and sweating. She also reported that a recent flare up of symptoms had lasted for three days during which time she experienced diarrhea, vomiting, panting, sweating, clammy skin, hot flashes, heart racing, dizziness, and passing out. She indicated that she had been unable to stand up for a number of days and that she required bed rest for three days before the symptoms passed. A September 2013 VA examination report noted the Veteran underwent surgery for gallstones, a cholecystectomy, in 1999 and that a prepyloric mass in the antrum had been excised with pathology findings of an ectopic pancreatic tissue. It was noted that since then she had symptoms comparable to dumping syndrome with abdominal pressure, diarrhea, sweating, palpitations, and nausea and vomiting shortly after eating. She reported the attacks can be severe causing her to feel weak for several days or mild with a bowel movement to relieve abdominal pressure. It was also noted that she gallbladder disease-induced dyspepsia episodes 4 or more times per year and had daily diarrhea that could be mild to explosive. She had weight loss with a baseline weight of 158 lbs and a current weight of 135 lbs. The examiner noted the disorder had an impact on her ability to work and that she took a leave of absence when she had a severe attack. The current level of severity was found to be moderate with symptoms including abdominal pressure, diarrhea, sweating, nausea, vomiting, and palpitations which occurred shortly after eating and varied in intensity from mild to severe on a daily basis. It was also noted that she had a weight loss of 23 lbs over the last year. In an October 2013 addendum the examiner again stated that her level of disability for postgastrectomy syndrome and postcholecystectomy syndrome was moderate. The opinion was noted to have been based on her symptoms ranging from mild to severe attacks as noted in her history. The examiner further stated that it would be speculation on his part to determine how much each condition contributes to her symptoms as both syndromes have similar symptoms of abdominal pressure, diarrhea, palpitations, nausea, and vomiting. An October 2013 rating decision granted entitlement to an increased 40 percent rating for residuals of gall bladder removal surgery, including dumping syndrome. The rating was assigned effective from June 26, 2013, under the provisions of Diagnostic Code 7308. In a November 2013 statement the Veteran asserted that the symptoms she had experienced since the original attack included symptoms of dumping syndrome that were most common during a meal or within 15 to 30 minutes following a meal of nausea, vomiting, abdominal cramps, diarrhea, feelings of fullness, cardiovascular, flushing, dizziness, lightheadedness, heart palpitations, and rapid heart rate. She also noted, in essence, that based upon her research of internet source information that she believed she had symptoms of hypoglycemia. She reported that her very first attack had residual hypoglycemic effects for 24 hours and that the longest attack she had experienced was 72 hours. She asserted that the severity of her symptoms had always been severe. She expressed her opinion that ratings under Diagnostic Code 7308 for severe postgastrectomy syndrome were not based of the duration of the effects and that neither the report of 5-10 episodes per week noted at her 2004 VA examination or the 7-21 episodes per week she reported in her 2005 notice of disagreement could ever be considered infrequent or less frequent. She asserted that no examiner had listed her full symptoms, but that there were references to nausea and lightheadedness that were circulatory and hypoglycemic symptoms. She stated that her symptoms had always most closely resembled that of a severe disability under Diagnostic Code 7308. Based upon the evidence of record, the Board finds that prior to June 26, 2013, the Veteran's service-connected residuals of gall bladder removal surgery, including dumping syndrome, were manifested by no more than severe symptoms associated with removal of the gall bladder. The presently assigned 30 percent rating is the maximum schedular rating available under Diagnostic Code 7318. The Board notes that the Veteran's disability may also be evaluated under the criteria of Diagnostic Code 7308, but that separate ratings for Diagnostic Codes 7308 and 7318 are not permitted under the provisions of 38 C.F.R. § 4.114. Although an initial schedular rating in excess of 30 percent residuals of gall bladder removal surgery, including dumping syndrome, is available under the alternative criteria of Diagnostic 7308, the Board finds that the persuasive evidence of record does not demonstrate a severe disability with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia nor a moderate disability with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. The Board notes that the use of the conjunction "and" in the symptom criteria for severe and moderate postgastrectomy syndrome disabilities under Diagnostic Code 7308 are successive and require that all of the additional criteria be demonstrated for the next higher rating. The Court has held that where rating criteria are worded in the conjunctive with the use of the word "and," each of the specified criteria must be present to warrant the specified percentage requirements. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The holding in Camacho only applies, however, where the rating criteria are "successive," meaning that the criteria for the lower rating plus additional criteria are required before the next higher rating is warranted. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The Board finds the persuasive evidence does not show that prior to June 26, 2013, the Veteran experienced weight loss as a result of her service-connected disability nor is there any credible evidence that the disability was manifested by malnutrition and anemia. In fact, records show that she gained 14 lbs subsequent to her surgery over the period from January 2000 to May 2008 and that her minor weight loss of 6 lbs over the period from May 2008 to November 2010 was not considered by the November 2010 VA examiner to have been indicative of a significant weight change. The available record shows the Veteran does not receive regular VA treatment for her service-connected GI disability; her most recent VA treatment records, other than VA examination reports, are dated in 2006. There is no record that the Veteran receives any medications through VA for her service-connected GI disability. The Board's 2013 Remand specifically advised the Veteran that there were no current VA treatment records related to the GI disability and specifically advised the Veteran that she should submit or identify private medical records of current GI treatment. The Veteran has not provided or indentified any pertinent private medical treatment for the GI disability over the course of this appeal. VA examination reports indicate that she reported that she has lost no more than one week of work over a previous 12-month period because of this disability. The Veteran has not submitted any additional employment medical record, sick leave record, or the like, to show loss of time from work other than as reported to the VA examiners. The January 2012 VA addendum report also found that based upon a review of the record the Veteran did not have symptomatology associated with circulatory symptoms after meals, weight loss, nausea, sweating, hypoglycemic symptoms, malnutrition, or anemia. Although VA treatment records dated in April 2006 included a diagnosis of mild anemia, the disorder was noted to have been related to heavy menses and apparently unrelated to the service-connected disability. The Board acknowledges that the Veteran contends her residuals of gall bladder removal surgery, including dumping syndrome, have been severe and manifested by circulatory symptoms after meals, weight loss, nausea, sweating, hypoglycemic symptoms, and malnutrition since the date of her original claim in June 2003. It is further noted that she is competent to provide evidence as to observable symptomatology. In determining whether evidence submitted by a veteran is credible, however, VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995); Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir.2006) (VA can consider bias in lay evidence and conflicting statements of a veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341 (1999) (Board can consider appellant's own personal interest in the outcome of the case). The Board finds that, based upon all of the evidence, the Veteran's statements that her residuals of gall bladder removal surgery and dumping syndrome prior to June 26, 2013, included circulatory symptoms after meals, weight loss, nausea, sweating, hypoglycemic symptoms, and malnutrition are not credible due to inconsistency with the available medical evidence of record. In particular, the Board notes that her youngest child was delivered during the pendency of this appeal. As noted above, the Veteran has not provided current medical treatment records or evidence related to her employment. If the Veteran's symptoms were of the severity, intensity, and frequency reported by the Veteran since the 2012 VA examination, the Veteran would have required medical treatment and would have provided objective evidence such as the records of treatment. The Board's 2013 Remand afforded the Veteran the opportunity to submit such evidence. The January 2012 VA addendum report is persuasive evidence, and is shown to have based upon a comprehensive review of the record, as well as consideration of the symptoms reported by the Veteran. Elevation to the next higher evaluation for diseases of the digestive system are not warranted based upon the severity of the overall disability. Therefore, a schedular rating in excess of 30 percent prior to June 26, 2013, for the Veteran's residuals of gall bladder removal surgery, including dumping syndrome, is not warranted. The examiner who conducted the September 2013 VA examination and provided the October 2103 addendum considered the symptoms reported by the Veteran in relationship to the Veteran's physical examination and current weight. The reports are persuasive evidence that the Veteran's current symptoms are not of greater severity than is reflected by the current evaluation. The Board finds that after June 26, 2013, the Veteran's service-connected residuals of gall bladder removal surgery, including dumping syndrome, is manifested by no more than a moderate dumping syndrome disability associated with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. It was the opinion of the September 2013 VA examiner that the current level of severity of the Veteran's disability was moderate with symptoms, including with consideration of the Veteran's weight loss of 23 lbs over the last year, as well as her reports of abdominal pressure, diarrhea, sweating, nausea, vomiting, and palpitations which occurred shortly after eating and varied in intensity from mild to severe on a daily basis. There is no credible evidence, however, that the disability has been manifested by malnutrition and anemia. In particular, the Board notes that the Veteran's current weight is within 10 pounds of her weight at the time of her service discharge. In particular, the Board notes that the assignment of a disability rating is intended to compensate a Veteran for occupational impairment. The 30 percent rating assigned during the pendency of this appeal from 2003 to June 26, 2013, and the 40 percent rating assigned from June 26, 2013, are commensurate with greater occupational impairment than the Veteran's reported average of one week lost per year due to the service-connected GI disability. The Board notes that the criteria for a 60 percent rating under Diagnostic Code 7308 do not specify a number of syndrome episodes, but that the phrase "less frequent episodes of epigastric disorders" for a 40 percent rating may be construed as fewer episodes than would result in all of the required nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia criteria for the 60 percent rating. In the absence of credible evidence demonstrating malnutrition and anemia, the Board finds the September 2013 examiner's opinion that the disability is currently moderate is persuasive. Elevation to the next higher evaluation for diseases of the digestive system are not warranted based upon the severity of the overall disability. Therefore, a schedular rating in excess of 40 percent after June 26, 2013, for the Veteran's residuals of gall bladder removal surgery, including dumping syndrome, is not warranted. The Board further finds that there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating. Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is determined on a disability-by-disability basis rather than on the combined effect of a veteran's service-connected disabilities. See Johnson v. Shinseki, 26 Vet. App. 237, 245 (2013) (en banc). The Veteran's service-connected residuals of gall bladder removal surgery, including dumping syndrome, are found to be adequately rated under the available schedular criteria. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The persuasive evidence in this case is not indicative of a marked interference with employment as a result of the service-connected disability. Although VA examination reports show the Veteran's residuals of gall bladder removal surgery, including dumping syndrome, have had significant effects on her employment, the record also shows she has been able to maintain fulltime employment with no indication that she has missed more than one week of work in any 12-month period. There is no evidence of other related factors such as frequent periods of hospitalization due to a service-connected disability. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to an initial evaluation in excess of 30 percent for residuals of gall bladder removal surgery, including dumping syndrome, prior to June 26, 2013, and in excess of 40 percent after June 26, 2013, is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs