Citation Nr: 0812301 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 07-11 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an evaluation in excess of 10 percent for post-operative residuals of rectal cancer. REPRESENTATION Appellant represented by: Thomas J. Reed, Widener University School of Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from May 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, wherein the RO granted service connection for post-operative residuals of rectal cancer under the provisions of 38 U.S.C. § 1151. The RO assigned a 100 percent rating from November 29, 2001 through the end of June 2002 (during active malignancy or therapeutic procedure), and a 10 percent rating beginning July 1, 2002. Jurisdiction of the claims files currently resides with the Wilmington, Delaware RO. In September 2007, the veteran's attorney submitted to the Board private treatment records of the appellant along with a waiver of RO jurisdiction. See 38 C.F.R. § 20.1304 (2007). In August 2007, the veteran testified before the undersigned from the Wilmington, Delaware RO, via videoconference hearing. A copy of the August 2007 hearing transcript has been associated with the claims files. During the above-referenced hearing, the veteran raised the issues of entitlement to service connection for the following disabilities all as secondary to his service-connected postoperative residuals of rectal cancer: a psychiatric disorder (claimed as anxiety/depression), impotence, residual scar, and disability manifested by abdominal wall problems. (Transcript (T.) at pages (pgs.) 12, 23). In addition, as the veteran testified that he is unable to maintain employment due to his service-connected post-operative residuals of rectal cancer, he has also raised a claim of entitlement to service connection for total disability evaluation based on individual unemployability due to service-connected disability (TDIU). (T. at page (pg.) 9). As the foregoing issues have not been developed for appellate review, they are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran contends that his service-connected post- operative residuals of rectal cancer are more severely disabling than reflected by the currently assigned 10 percent evaluation due to symptoms, such as fecal incontinence and explosive diarrhea. I. Substantive Development In May 2006, the veteran underwent his most recent VA examination addressing the severity of the veteran's service- connected residuals. During the August 2007 hearing before the undersigned, the veteran argued that the March 2006 VA examiner's findings of "No" diarrhea and fecal incontinence were entirely incorrect and insufficient because they do not reflect the severity of his service-connected postoperative residuals of rectal cancer, namely explosive diarrhea and fecal incontinence. (See, March 2006 VA examination report). The pertinent VA examination report is incomplete for rating purposes, and a new examination addressing the veteran's post-operative residuals of rectal cancer must be obtained. Re-examination of the veteran is needed to correct the deficiencies in the examination reports. 38 U.S.C.A. § 5103(A)(d)(1); 38 C.F.R. § 3.159(c)(4); See also 38 C.F.R. § 4.2 (2002); Massey v. Brown, 7 Vet. App. 204 (1994). On examination, the examiner should specifically lay out each of the symptoms of the service-connected disability in order to ensure that the disability is properly rated under he appropriate Diagnostic Code(s) (DCs or Codes). In this regard, the Board notes that there appears to be some confusion as to what Code or Codes to employ in rating the veteran's disability. In the September 2005 decision awarding service connection, the RO initially assigned a 10 percent rating for the veteran's service-connected post- operative residuals of rectal cancer under 38 C.F.R. § 4.114, DCs 7343-7301. By way of a May 2006 rating action, the RO evaluated the veteran's residual disability under a different hyphenated code, and assigned a 10 percent rating to the aforementioned disability under DCs 7343-7329 (2007). The Board points out that there are numerous Codes that may be applicable. Malignant neoplasms of the digestive system, exclusive of skin growths, are rated in accordance with 38 C.F.R. § 4.114, Diagnostic Code (DC) 7343 (2007). A 100 percent schedular rating is warranted for such a disorder and shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by a mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e)(2007). If there has been no local recurrence or metastasis, rate on residuals. Id. The provisions 38 C.F.R. § 4.114 indicate that ratings under DCs 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 that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Diagnostic Code (DC) 7301 pertains to adhesions of the peritoneum, and is for consideration when there is a history of operative or other traumatic or infectious (intra- abdominal), process and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. See note following 38 C.F.R. § 4.114, Diagnostic Code 7301. Under DC 7301, noncompensable evaluation will be assigned where there is evidence of adhesions of the peritoneum resulting in mild disability. A 10 percent rating will be assigned for adhesions that produce moderate disability, with pulling pain on attempting work or aggravated by movement of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distention. A 30 percent rating may be assigned for adhesions that produce moderately severe disability, with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain than required for a 50 percent rating. A 50 percent rating is warranted for adhesions resulting in severe disability, where there is definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distention, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage warrant a 50 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7301. The residuals of the resection of the large intestine are rated in accordance with 38 C.F.R. § 4.114, DC 7329 (2007). Under DC 7329, 10 and 20 percent disability ratings are warranted for slight and moderate symptoms, respectively. A 30 percent disability rating is assigned for severe symptoms, objectively supported by examination findings. Where residual adhesions constitute the predominant disability, the disability is to be rated under 38 C.F.R. § 4.114, DC 7301 (2007). Note following 38 C.F.R. § 4.114, DC 7329. Because of the number and variation in the different Diagnostic Codes potentially applicable in this matter, the Board finds that the scope, and the predominant characteristic, of the postoperative residuals of rectal cancer must be clarified through medical examination in order that the disability may be rated under the appropriate diagnostic code. The portion of the rating schedule pertaining to disabilities of the digestive system contemplates that such disabilities may involve more than one specific disorder and therefore may invoke more than one diagnostic code. The rating schedule provides that when more than one diagnostic code is thus applicable (specifically, more than one of the diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7245 to 7348 inclusive), a single evaluation is to 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 evaluation." 38 C.F.R. § 4.114. Re-examination of the veteran is required so that the scope, and individual features, of his service-connected disability of the digestive system may be clarified and the disability then rated under the diagnostic code reflecting its predominant characteristic. 38 U.S.C.A. § 5103(A)(d)(1)(West 2002); 38 C.F.R. § 3.159(c)(4) (2007). II. Procedural Development During an August 2007 hearing before the undersigned, the veteran testified that since 2001, he had sought treatment for psychiatric problems as secondary to service-connected postoperative residuals of rectal cancer from a VA psychiatrist at the Wilmington, Delaware VA Medical Center (VAMC). (See, T. at pg. 12). A review of the claims files reflects that treatment records from the above-referenced VA facility have not been associated with the claims files. VA has constructive notice of documents generated by VA whether in the claims file or not. Bell v. Derwinski, 2 Vet. App. 611 (1992). In this regard, the Board notes that, because of the need to ensure that all potentially relevant VA records are made part of the claims file, a remand is necessary. Id. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of treatment of the veteran, dating from 2001 to the present from the VAMC in Wilmington, Delaware. If these records can not be obtained, documentation stating this fact must be associated with the claims files. 2. Schedule the veteran for a gastrointestinal examination to determine the current severity of the service-connected post-operative residuals of rectal cancer. It is imperative that the claims files be made available to and be reviewed by the examiner. After reviewing the claims files, the examiner is asked to respond to the following questions: (a) Identify all of the veteran's symptoms related to his service- connected postoperative residuals of rectal cancer as moderate, moderately severe, or severe under DC 7301. The examiner is specifically requested to comment on the presence, or absence of, the following: * any manifestation of pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension; * partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain; and * definite partial obstruction shown by x-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. (b) Identify all of the veteran's symptoms related to his service- connected postoperative residuals of rectal cancer as moderate, moderately severe, or severe under DCs 7329 and 7332. The examiner is specifically requested to comment on the presence, or absence of, the following: * resection of the large intestine with slight, moderate or severe symptoms, objective supported by examination findings; * constant slight, or occasional moderate leakage; occasional involuntary bowel movements, necessitating wearing of pad; extensive leakage and fairly frequent involuntary bowel movements; and complete loss of sphincter control. The examiner must provide a rationale for his or her respective opinion. 3. The RO should then readjudicate the claim for a higher rating for service- connected postoperative residuals of rectal cancer, to include whether staged ratings are warranted. See, Fenderson v. West, 12 Vet. App. 119 (1999). If the benefit sought on appeal remains denied, the veteran and his representative should be issued an appropriate supplemental statement of the case and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of his claim. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for the scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that is remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).