Citation Nr: 0812326 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-36 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for postgastrectomy syndrome, status post partial gastrectomy syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from September 1960 to September 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Board remanded this case in April 2007. The Board has reviewed the veteran's claims file and notes that the Notice of Disagreement on this claim was received in March 2004, only nine months following the initial grant of service connection for his disorder in June 2003. Accordingly, the Board has recharacterized the claim on appeal as concerning an initial evaluation, rather than an increase in an existing evaluation. This preliminary determination should allow the veteran the maximum possible consideration in the review of his appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999); see also Jennings v. Mansfield, 509 F.3d 1362 (2007) (indicating that claimants have one year in which to appeal an RO decision, in the context of a service connection claim, in light of 38 C.F.R. § 3.156(b)). FINDINGS OF FACT 1. During the period from February 8, 1999 through August 20, 2003, the veteran's postgastrectomy syndrome was productive of no more than mild symptoms, with infrequent symptoms including occasional reflux and episodes of diarrhea about five to ten times per month. 2. Evidence beginning on August 21, 2003 reflects that the veteran's postgastrectomy syndrome has become moderately disabling, with diarrhea reported as frequently as daily, daily nausea, daily bad breath, bloating and upper gas, nighttime indigestion with acid reflux, and daily indigestion. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for postgastrectomy syndrome, status post partial gastrectomy syndrome, for the period from February 8, 1999 through August 20, 2003 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.27, 4.111, 4.112, 4.114, Diagnostic Code 7308 (2007). 2. The criteria for a 40 percent evaluation for postgastrectomy syndrome, status post partial gastrectomy syndrome, for the period beginning on August 21, 2003 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.27, 4.111, 4.112, 4.114, Diagnostic Code 7308 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in regard to the current claim in May 2007. While this letter was issued subsequent to the appealed rating decision, the veteran's case was later readjudicated in a July 2007 Supplemental Statement of the Case, consistent with the Mayfield line of decisions. As this case concerns the propriety of an initial evaluation, rather than a claimed increase in an existing evaluation, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in a the May 2007 letter. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. The Board also notes that the veteran has been afforded comprehensive VA examinations in conjunction with this appeal, addressing the disorder at issue. In summary, all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also 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). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The veteran's disability has been evaluated by analogy under 38 C.F.R. § 4.114, Diagnostic Code 7308, concerning postgastrectomy syndromes. See 38 C.F.R. §§ 4.20, 4.27. Under Diagnostic Code 7308, a 20 percent evaluation is assigned in mild cases, with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A 40 percent evaluation is warranted in moderate cases, with less frequent episodes of epigastric disorders (compared to the criteria for a 60 percent evaluation) with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent evaluation is in order in severe cases, associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Under VA regulations, 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. In the appealed June 2003 rating decision, the RO granted service connection for postgastrectomy syndrome, status post partial gastrectomy, with a 20 percent evaluation assigned as of February 8, 1999. The initial 20 percent evaluation was largely predicated on the report of a May 2000 VA upper gastrointestinal examination. During this examination, the veteran's complaints were focused on needing to eat multiple small meals during the day, heartburn with occasional reflux, and episodes of diarrhea about five to ten times per month, often accompanied by nausea and dizziness. The examiner commented that the nature of the veteran's subjective complaints suggested that he was not experiencing the "dumping syndrome" often seen after gastric surgery. During the examination, the veteran had no organomegaly but complained of diffuse abdominal tenderness. The examiner rendered impressions of status postgastrectomy for bleeding gastric ulcer; and postgastrectomy syndrome, including early satiety, esophageal reflux, "3 episodic diarrhea" most likely due to lactose intolerance, and a questionable relationship to gastric surgery. Subsequently, a VA outpatient treatment record from October 2002 indicates that the veteran reported "no specific difficulty with food or liquid consumed," although he was noted to have choking on secretions that was unlikely to be related to a uvulopalatopharyngoplasty. A VA outpatient treatment report from August 21, 2003, however, indicates that the veteran reported "dumping syndrome" since his partial gastrectomy for peptic ulcer disease. He described chronic symptoms of diarrhea after meals everyday, about one- half hour after breakfast and after supper. During his September 2003 VA upper gastrointestinal examination, the veteran reported daily nausea and feelings of lightheadedness after eating meals. He reported watery to loose bowel movements with flatus after meals, and he had to eat many small meals. His weight was noted to fluctuate between 186 and 196 pounds. Other subjective symptoms included daily bad breath, bloating and upper gas, nighttime indigestion with acid reflux, and daily indigestion. He denied hematemesis or melena. The examination revealed the abdomen to be tender to light palpation. The assessment was status partial gastrectomy, with gastrointestinal symptoms relating to his partial gastrectomy. The examiner found it to be at least as likely as not that the veteran's stomach condition was the direct and proximate result of his service- connected postgastrectomy syndrome, status post partial gastrectomy. During his December 2004 RO hearing, the veteran reported having diarrhea on a daily basis. He described a cycle in which he felt light-headed and tired each time he ate. Also, he noted some fluctuations in his weight, excessive flatulence, and bad breath. The veteran's most recent VA examination was conducted in September 2007. The examiner noted recent treatment records showing chronic diarrhea over the past few years, with blood in the stool. A separate diagnosis of ulcerative proctitis was described, and a recent sigmoidoscopy was noted to have revealed colonic mucosa with lymphoglandular complex and severe chronic colitis. During the examination, the veteran initially stated that he had diarrhea four to five times per day but later described it as happening three to four times per week. He noted occasional nausea and vomiting three to four times per week and bloating after every time he ate. His weight was noted to have been within 10 pounds, from 180 to 195 pounds over the past five years. Other symptoms included a sour breath smell and loss of sleep due to gastroesophageal reflux symptoms. There was no evidence of anemia or malnutrition, and the veteran denied hematemesis or melena; however, it was noted that his stool had been a dark green color since May 2007. He denied lightheadedness (e.g., no reported circulatory disturbance after meals) or hospitalizations but noted that he minimized his eating to control his diarrhea. In rendering a diagnosis of postgastrectomy syndrome, the examiner opined that the recent exacerbation of symptoms was most likely due to nonservice- connected proctitis/colitis which had improved with treatment. The Board has reviewed the above evidence and finds that, during the period from February 8, 1999 through August 20, 2003, the veteran's disability was not shown to be more than mild in degree. The evidence from that period, notably the May 2000 VA examination report, reflects relatively infrequent symptoms, with occasional reflux and episodes of diarrhea about five to ten times per month, often accompanied by nausea and dizziness. This evidence does not support an evaluation in excess of 20 percent under Diagnostic Code 7308 for that time period. Beginning with the veteran's VA outpatient treatment on August 21, 2003, however, the evidence of record has reflected disability that is now moderately disabling. The VA treatment record from that date is notable in that it indicates reports of "dumping syndrome," with chronic symptoms of diarrhea after meals everyday, about one-half hour after breakfast and after supper. The September 2003 VA examination report is consistent with these findings, with additional symptoms including daily nausea, daily bad breath, bloating and upper gas, nighttime indigestion with acid reflux, and daily indigestion. The examiner who conducted the September 2007 VA examination largely attributed the recent exacerbation of symptoms was most likely due to nonservice-connected proctitis/colitis. However, this examiner did not describe which specific symptoms (i.e., diarrhea, nausea, vomiting) were due to one disorder rather than the other. The Board is thus unable to reach the conclusion that the veteran's disability would have remained mild in degree but for the proctitis/colitis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition). Overall, the evidence beginning on August 21, 2003 supports a 40 percent evaluation under Diagnostic Code 7308 for moderate symptoms. That notwithstanding, there is no basis for an even higher evaluation of 60 percent for severe symptoms under Diagnostic Code 7308 for this later time period. The veteran has reported nausea and diarrhea, but there is no objective evidence of circulatory disturbance after meals, malnutrition, or anemia. Moreover, his weight has remained relatively constant, within a limited range of approximately 180 to 196 pounds based on multiple reports. See 38 C.F.R. § 4.112 (defining, among other things, a "minor weight loss" as a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer). The Board notes that, during the pendency of this appeal, the veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations. There is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Overall, the evidence of record does not support an initial evaluation in excess of 20 percent for postgastrectomy syndrome, status post partial gastrectomy syndrome, for the period from February 8, 1999 through August 20, 2003, but the evidence beginning on August 21, 2003 supports an increased evaluation of 40 percent. This staged rating represents a denial for the first time period and a grant for the second time period. 38 C.F.R. § 4.7. ORDER Entitlement to an initial evaluation in excess of 20 percent for postgastrectomy syndrome, status post partial gastrectomy syndrome, for the period from February 8, 1999 through August 20, 2003 is denied. Entitlement to a 40 percent evaluation for postgastrectomy syndrome, status post partial gastrectomy syndrome, for the period beginning on August 21, 2003 is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs