Citation Nr: 1103050 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 07-27 855A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 60 percent for residuals of duodenal ulcer with partial gastrectomy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from December 1948 to June 1950. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2006 and January 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. In the October 2006 rating decision, the RO, in pertinent part, continued a 40 percent rating for residuals of duodenal ulcer with partial gastrectomy. In the January 2009 rating decision, the RO denied a TDIU. In an August 2008 rating decision, the RO granted an increased, 60 percent, rating for residuals of duodenal ulcer with partial gastrectomy, effective May 5, 2006. Despite the increased rating established, the Veteran has not been awarded the highest possible rating, to include on an extraschedular basis. As a result, he is presumed to be seeking the maximum possible benefit and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). In August 2008, the Veteran testified before a Decision Review Officer (DRO) via teleconference. A transcript of that hearing is of record. In November 2009, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge sitting at the RO (Travel Board hearing). A transcript of that hearing is also of record. In January 2010, the Board remanded the claims on appeal for further development. In December 2010, subsequent to issuance of the most recent supplemental statement of the case (SSOC), the Veteran submitted additional evidence in support of his claims. This evidence was accompanied by a 30-day waiver, in which the Veteran indicated that he did not have any additional evidence regarding his appeal, and requested that his case be forwarded to the Board immediately. He added that, if he located and wished to submit evidence at a later time, he waived his right to have his case remanded to the agency of original jurisdiction (AOJ) and asked the Board to consider the new evidence. While the additional evidence was submitted with, instead of subsequent to, submission of this form, the RO accepts the 30-day waiver as a waiver of RO consideration. As such, the evidence submitted in December 2010 is accepted for inclusion in the record. See 38 C.F.R. 20.1304 (2010). The Board notes that the Veteran is entitled to representation at all stages of an appeal. 38 C.F.R. § 20.600 (2010). VA policy is to afford the representative an opportunity to submit a VA form 646 after completing the development directed in a remand and prior to returning an appeal to the Board. VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part 1, Chapter 5, Section F, Para. 27 (Aug. 4, 2009). While the record does not contain a VA Form 646 from the Veteran's representative since the Board's January 2010 remand of the case, the Veterans Appeals Contact and Locator System (VACOLS) reflects that the AMC requested a VA Form 646 from the Veteran's representative in November 2010. The representative did not respond within 30 days. Hence, the Veteran has been afforded his full right to representation during all stages of the appeal. 38 C.F.R. § 20.600. In January 2010, the Board noted that, in October 2007, the Veteran indicated that he would like VA to reimburse him for the money he had to spend at his dentist. Accordingly, the Board referred a claim of entitlement to reimbursement for dental expenses to the VA Medical Center (VAMC) for appropriate action. There is no indication in the claims file that this matter has since been addressed by the VAMC. The issue of entitlement to reimbursement for dental expenses has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Residuals of duodenal ulcer with partial gastrectomy are manifested by severe symptoms, including nausea, anemia, and weight loss, in an unexceptional disability picture. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for residuals of duodenal ulcer with partial gastrectomy are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7308 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. In this case, the Veteran's claim for an increased rating was received in May 2006. Thereafter, he was notified of the general provisions of the VCAA by the RO and the AMC in correspondence dated in August 2006 and March 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding the VCAA. Thereafter, the claim was reviewed and an SSOC was issued in November 2010. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in the August 2006 and March 2010 letters. The Veteran has been made aware of the information and evidence necessary to substantiate his claim for an increased rating and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. VA and private treatment records have been obtained and associated with his claims file. The Veteran has also been provided with VA examinations to assess the nature of his service-connected disability. The Board finds that no additional action to further develop the record is warranted. In this regard, the Board has considered the fact that, in January 2010, the Board remanded the case, in part, to obtain private treatment records from Dr. M.A.W. and Dr. Y.Y. In March 2010 correspondence, the AMC specifically advised the Veteran that VA needed records of treatment from Dr. M.A.W. since February 2008 and Dr. Y.Y. since November 2007. The AMC asked the Veteran to complete and return an enclosed VA Form 21- 4142 (Authorization and Consent to Release Information) for each health care provider if he wanted VA to try to obtain any doctor, hospital, or medical reports on his behalf. While the Veteran subsequently submitted records of treatment from Dr. Y.Y. dated from July 2009 to April 2010, he did not return a VA Form 21-4142 regarding Dr. M.A.W. Rather, he indicated in May and December 2010 that he had no other information or evidence to give VA to support his claim. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As the Veteran has not provided a release form for additional records of treatment from Dr. M.A.W., it is not possible for VA to obtain them; hence, no further action in this regard is warranted. The Board further notes that, during his November 2009 hearing, the Veteran reported that he stopped working in 1988 when he went on Social Security disability for a bad back. The Social Security Administration (SSA) decision is not of record, however, the Veteran's own statement indicates that he was awarded SSA benefits not for his service-connected ulcer disability, but rather, as he stated, for a bad back. There has been no argument that the SSA records are pertinent to the claim being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Additionally, the Board has considered that, in the January 2010 remand, the Board instructed that the Veteran should be afforded a VA examination to obtain an opinion regarding the impact of his service-connected disability on his employability. The examiner was instructed to provide an opinion concerning the impact of the Veteran's service-connected residuals of duodenal ulcer with partial gastrectomy on his ability to work, specifically whether it causes marked interference with employment. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in July 2010; however, the examiner did not provide an opinion regarding whether the Veteran's service-connected disability, alone, caused marked interference with employment. In any event, as will be discussed further below, the Court has articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must 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 the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) aff'd sub. nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As will be discussed in greater detail below, the Board finds that the pertinent evidence of record does not indicate that the service-connected ulcer disability presents such an exceptional disability picture that the schedular evaluation is inadequate. Therefore, as the Board need not reach the question of whether this disability causes marked interference with employment, remand is not required to obtain a VA medical opinion regarding this question. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to the requirements of 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); 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). Furthermore, the Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following rating criteria are applicable in evaluating the Veteran's service-connected for residuals of duodenal ulcer with partial gastrectomy. 720 3 Esophagus, stricture of: Ratin g Permitting passage of liquids only, with marked impairment of general health 80 Severe, permitting liquids only 50 Moderate 30 38 C.F.R. § 4.114, Diagnostic Code 7203 (2010). 730 6 Ulcer, marginal (gastrojejunal): Ratin g Pronounced; periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss. Totally incapacitating 100 Severe; same as pronounced with less pronounced and less continuous symptoms with definite impairment of health 60 Moderately severe; intercurrent episodes of abdominal pain at least once a month partially or completely relieved by ulcer therapy, mild and transient episodes of vomiting or melena 40 Moderate; with episodes of recurring symptoms several times a year 20 Mild; with brief episodes of recurring symptoms once or twice yearly 10 38 C.F.R. § 4.114, Diagnostic Code 7306 (2010). 730 8 Postgastrectomy syndromes: Ratin g Severe; associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia 60 Moderate; less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss 40 Mild; infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations 20 38 C.F.R. § 4.114, Diagnostic Code 7308 (2010). 732 3 Colitis, ulcerative: Ratin g Pronounced; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess 100 Severe; with numerous attacks a year and malnutrition, the health only fair during remissions. 60 Moderately severe; with frequent exacerbations 30 Moderate; with infrequent exacerbations 10 38 C.F.R. § 4.114, Diagnostic Code 7323 (2010). Factual Background and Analysis Historically, in an August 1951 rating decision, the RO granted service connection and assigned an initial 40 percent rating for residuals of duodenal ulcer with partial gastrectomy, effective July 1, 1950. In May 2006, the Veteran filed his current claim for an increased rating. In an August 2008 rating decision, the RO granted an increased, 60 percent, rating pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7308. Records of VA and private treatment dated from May 2005 to April 2010 reflect complaints regarding and treatment for residuals of the duodenal ulcer. The Veteran was admitted to a private hospital in April 2006 for gastrointestinal bleeding. He presented to the emergency room with dark stools and was noted to be anemic. On admission, he denied weight loss. On consultation the following day, he described dysphagia to solid food, but denied nausea, vomiting, diarrhea, constipation, melena, and hematochezia. He stated that he had poor appetite and described weight loss of 30 pounds over the past year. Gastrointestinal assessment included occult gastrointestinal bleeding of unknown etiology; status post partial gastrectomy for bleed, peptic ulcer disease; weight loss; and anemia. An upper gastrointestinal pandendoscopy plus biopsy revealed a superficial marginal ulcer with oozing of blood. The Veteran was ambulating and doing very well at the time of discharge. The pertinent discharge diagnoses were acute gastrointestinal bleed; acute esophagitis, ulcer; and status post subtotal gastrectomy. In June 2006, the Veteran was afforded a VA examination to evaluate his gastrointestinal disability. He described difficulty swallowing due to ill-fitting partial dentures and denied abdominal pain and gross gastrointestinal bleeding. The examiner noted that the Veteran had been admitted to a private hospital in April 2006, where endoscopy revealed an ulcer. On VA examination, the abdomen was soft with a midline scar. The assessment was history of ulcer treated with surgery in 1949 and a recurrence of ulcer on recent endoscopy with bleeding. The examiner opined that this would be a worsening of the Veteran's ulcer condition with recurrence. Records of treatment from Dr. M.A.W., dated from January 2006 to January 2008 reflect that, in regard to his gastric ulcer, the Veteran was encouraged to live a normal lifestyle in June 2006, avoiding alcohol and anti-inflammatories. The diagnoses during treatment the following month included anemia. The physician noted that the Veteran's blood count had not moved very much since his gastrointestinal bleed. In October 2006, the physician noted that the recent gastric ulcer had caused significant anemia; however, the Veteran's blood count was up to 15, which was described as spectacular. The Veteran was encouraged to discontinue any iron supplementation. In November 2006, the Veteran described belching, burping, and dyspepsia. He also stated that he had lost about 10 pounds, which he attributed to his digestive problem. In a November 2006 note, Dr. M.A.W. indicated that the Veteran had increased gastrointestinal symptoms, specifically, weight loss, adding that he had a history of bleeding peptic ulcer disease. In July 2007 the Veteran complained of mild dyspepsia and burping. In September 2007, the Veteran stated that he thought he was losing weight; however, the physician noted that his weight was 199 pounds, which was actually up a few pounds. Physical examination of the gastrointestinal system was negative. In December 2006, the Veteran presented to his private gastroenterologist, Dr. Y.Y., with complaints of increased belching and epigastric pain. He described weight loss and anemia, but denied nausea, vomiting, diarrhea, melena, hematemesis, and hematochezia. The pertinent assessment was epigastric pain and belching, rule out marginal ulcer and status post Billroth type II operation, and weight loss and anorexia. In February 2007, Dr. Y.Y. performed an upper gastrointestinal panendoscopy plus biopsies. The report of that procedure reflects that the entire esophageal mucosa was unremarkable with no ulcers or tumors. There was moderate diffuse edema and erythema in the residual gastric mucosa along with superficial ulceration around the anastomotic site. Multiple biopsies were taken from the stomach and marginal ulcers at the anastomotic site. The impression was diffuse gastritis, probably due to bile acid induced; superficial marginal ulcer; and status post Billroth type II operation. The pathology report findings regarding the superficial marginal ulcer were gastric mucosa with chronic inflammation, gastric mucosa with hyperplasia suggesting hyperplastic polyp, and duodenal mucosa with chronic inflammation. Giemsa stain for microorganisms was negative for Helicobacter pylori. During VA treatment in February 2007, the Veteran stated that he continued to have burping and abdominal bloating which caused nervousness and difficulty sleeping. A March 2008 VA treatment record reflects an assessment of peptic ulcer disease, somewhat under control. The Veteran stated that he was asymptomatic. In October 2008, the Veteran was admitted to a private hospital with complaints of an inability to swallow, belching, and vomiting. Esophagogastroduodenoscopy (EGD) revealed a small piece of food obstructing the distal esophagus. The diagnoses were esophageal foreign body, Schatzki ring, and gastric polyp. In correspondence dated in August 2008, Dr. M.A.W. stated that he had been treating the Veteran for peptic ulcer disease for many years and that he had intermittent symptoms of nausea, occasional vomiting, dyspepsia, gas, and flatulence. He opined that the Veteran had severe post gastrectomy syndrome associated with the symptoms described above, anemia, and dyspepsia. In correspondence dated in December 2008, Dr. M.A.W. stated that the Veteran had multiple problems which precluded him from gainful employment. He added that the Veteran had recently had significant gastrointestinal issues, including significant peptic ulcer disease. In a February 2009 letter, Dr. M.A.W. reiterated that the Veteran was unemployable due to multiple pathologies. On VA examination in April 2009, the Veteran complained of dizziness and fatigue. He described dysphagia, regurgitation, and an intentional 40 pound weight loss. He denied abdominal pain, rectal bleeding, and black stools (unless he took iron tablets). He denied debilitating fatigue and stated that his routine daily activities were restricted 50 percent, adding that he could no longer mow his grass or use a weed whacker or snow blower. The physician opined that the Veteran's dizziness and fatigue prevented chores, had severe effects on shopping, exercise, sports, recreation, traveling, feeding, and bathing, and had a moderate effect on toileting. There were no effects on dressing or grooming. The physician opined that it was at least as likely as not that dizziness was caused by the service- connected duodenal ulcer with partial gastrectomy, but that it was less likely than not that fatigue was caused by the service- connected duodenal ulcer with partial gastrectomy. [Parenthetically, the Board notes that, in a June 2009 rating decision, the RO included dizziness in the 60 percent rating for the Veteran's service-connected disability and denied service connection for fatigue.] A July 2009 record of treatment from Dr. T.J.C., the Veteran's private cardiologist, includes an assessment of recurrent choking secondary to possible dysphagia. In an August 2009 note, Dr. Y.Y. stated that the Veteran underwent a Billroth type II operation during service which may cause occasional dumping syndrome, resulting in difficulty with maintaining gainful employment as a heavy equipment operator. During the November 2009 hearing, the Veteran testified that his ulcer kept him from working, reporting that he had a sour stomach and belched and burped after eating. His representative added that one of the side effects of the Veteran's medication for his ulcer was dizziness, which resulted in falling. He denied being hospitalized in the past year for his ulcer, stating that he had been hospitalized three years earlier. The Veteran was afforded a VA examination in July 2010. The examiner commented that the Veteran had several conditions which would preclude his continued working. She noted that he also had a history of heart disease with atrial fibrillation, hypertension, and hyperlipidemia. The diagnoses were ulcer disease, atrial fibrillation, hypertension, hyperlipidemia, cardiomyopathy, chronic obstructive pulmonary disease (COPD), pneumoconiosis, and degenerative joint disease. The physician opined that the Veteran's ulcer disease had significant effects on his usual occupation, indicating that his disability impacted his occupational activities due to decreased mobility, lack of stamina, and weakness or fatigue. She added that the diagnosis of degenerative joint disease impaired his mobility. She commented that the Veteran's education, age, and diagnoses would preclude his working, adding that his cardiac and degenerative joint disease diagnoses would preclude him from having the endurance and stamina to perform the tasks of his occupation as a heavy equipment operator. In correspondence dated in December 2010, Dr. T.J.C. reported that the Veteran had a long history of atrial fibrillation, and had remained active and able to carry on his usual activities up until recently. He added that the Veteran stated that his fatigue was related to some of his medications. Collectively, the aforementioned evidence provides no basis for assignment of more than a 60 percent rating for residuals of duodenal ulcer with partial gastrectomy. As an initial matter, the Board notes that the Veteran is currently in receipt of the maximum schedular evaluation for postgastrectomy syndromes, pursuant to Diagnostic Code 7308. The Board has considered the fact that a higher, 100 percent rating is available for a pronounced marginal ulcer, with periodic or continuous pain unrelieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss, totally incapacitating. However, while there was evidence of a marginal ulcer on examination in April 2006 and February 2007, there is simply no medical evidence indicating that such ulcer is totally incapacitating. Rather, the Veteran was described as doing very well on discharge from the hospital in April 2006, he was encouraged to live a normal lifestyle during treatment in June 2006, he described himself as asymptomatic during VA treatment in March 2008, and stated that his routine daily activities were restricted by 50 percent during VA examination in April 2009. Most recently, Dr. T.J.C. indicated in December 2010 that the Veteran remained active and able to carry on his usual activities up until recently. He did not indicate that the Veteran was unable to carry on his usual activities because of his service- connected ulcer disability, nor did he indicate that the Veteran was totally incapacitated. In addition, while the Veteran has, at times, described vomiting and weight loss, the pertinent medical evidence does not reflect recurring melena or hematemesis. As such, an increased rating pursuant to Diagnostic Code 7306 is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7306. The Board has also considered the fact that, in his December 2008 letter, Dr. M.A.W. reported that the Veteran recently had a gastrointestinal stricture which required endoscopy and dilation. However, during the November 2009 hearing, the Veteran's representative clarified that he had an obstruction. Review of October 2008 treatment records from Hazleton General Hospital confirms that a small piece of food was obstructing the esophagus. There is simply no medical evidence of a stricture of the esophagus permitting passage of liquids only, with marked impairment of general health. Rather, the discharge summary from his October 2008 hospitalization indicates that the Veteran was discharged on a puree diet which could be advanced to a soft diet in a couple of days. Accordingly, a higher rating pursuant to Diagnostic Code 7203 is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7203. A rating in excess of 60 percent is also available under the diagnostic code evaluating ulcerative colitis; however, this condition has not been demonstrated in the record during the period in question, thus, a higher evaluation under the diagnostic code evaluating ulcerative colitis is not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7323. The Board has also considered whether the Veteran is entitled to a separate evaluation for an abdominal scar, as noted on VA examination in June 2006. See Esteban v. Brown, 6 Vet. App. 259 (1994). However, as the scar has not been described as painful, and has not been found to be unstable, exceed 144 square inches, or to be deep or cause limited motion, a separate compensable evaluation is not warranted. 38 C.F.R. § 4.118 (2010). The above determinations are based upon consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that the Veteran's ulcer disability has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b). As discussed above, the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must 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 the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) aff'd sub. nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this particular case, the Board finds that the Veteran's symptomatology and limitation of functioning concerning his ulcer disability are reasonably contemplated by the rating schedule under the first prong of this analysis. A comparison between the level of severity and symptomatology of the Veteran's residuals of duodenal ulcer with partial gastrectomy with the established criteria found in the rating schedule for those residuals shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Significantly, the 60 percent rating currently assigned reflects severe symptomatology. It is therefore unnecessary to reach the question of whether the disability causes marked interference with employment or frequent periods of hospitalization. But even assuming, for the sake of argument only, that the second prong of Thun applies, the evidence does not show that the Veteran has required frequent periods of hospitalization for his ulcer disability during the period pertinent to this claim. Rather, he was only hospitalized for this disability in April 2006. While he was also hospitalized in October 2008, this was related to a foreign body in the esophagus, as opposed to the service-connected ulcer disability. Therefore, frequent periods of hospitalization for the service-connected disability have not been demonstrated. In addition, while the Veteran has reported that he is unemployable due to his ulcer disability, and has submitted statements from his private physicians in support of this assertion, there is no indication that the Veteran's disability causes impairment with employment over and above that which is already contemplated in the assigned 60 percent schedular rating. As noted above, the current rating contemplates severe symptoms. Significantly, in his August 2008 letter, Dr. M.A.W. stated that the Veteran had severe post gastrectomy syndrome. In addition, in his December 2008 and February 2009 letters, Dr. M.A.W. indicated that the Veteran had multiple problems which precluded him from gainful employment. While, in his August 2009 letter, Dr. Y.Y. indicated that the Veteran underwent a Billroth type II operation during service, which might cause occasional dumping syndrome, resulting in difficulty with maintaining gainful employment as a heavy equipment operator, this letter does not indicate that the ulcer disability would result in difficulty with maintaining gainful employment in general. Accordingly, marked interference with employment has not been demonstrated. Further, while the July 2010 VA examiner opined that the Veteran's ulcer disease had significant effects on his usual occupation, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of time working from exacerbations or illnesses proportionate to the severity of the several grades of disability. Thus, even if the ulcer disability has caused some interference with employment, this alone would not be tantamount to concluding there has been marked interference with employment, meaning above and beyond that contemplated by the assigned 60 percent rating. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating itself is recognition that industrial capabilities are impaired. Therefore, referral for extra- schedular consideration in this case is not in order. For all the foregoing reasons, there is no basis for staged rating of the residuals of duodenal ulcer with partial gastrectomy, pursuant to Hart, and the claim for increase must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of an increased rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER A rating in excess of 60 percent for residuals of duodenal ulcer with partial gastrectomy is denied. REMAND Unfortunately, the claims file reflects that further action on the claim remaining on appeal is warranted, even though such action will, regrettably, further delay an appellate decision in this appeal. As indicated in the January 2010 remand, the Veteran contends that he is unemployable due to his service-connected residuals of duodenal ulcer with partial gastrectomy, which is his only service-connected disability. This disability is evaluated as 60 percent disabling and, as such, meets the schedular criteria for consideration of a TDIU. See 38 C.F.R. § 4.16(a) (2010). In January 2010, the Board noted that, in December 2008 and February 2009 letters, Dr. M.A.W. indicated that the Veteran had multiple problems which precluded him from gainful employment. In a letter dated in August 2009, Dr. Y.Y. stated that the Veteran underwent a Billroth type II operation during service, which might cause occasional dumping syndrome, resulting in difficulty with maintaining gainful employment as a heavy equipment operator. In light of this medical evidence, the Board remanded the claim, in part, to obtain a VA medical examination and opinion as to whether the Veteran's service-connected disability, alone, precludes him from obtaining and maintaining substantially gainful employment. The Board instructed that the Veteran should be afforded a VA examination to obtain an opinion regarding the impact of his service-connected disability on his employability. The examiner was instructed to indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disability, alone, would preclude his obtaining and retaining substantially gainful employment consistent with his education and occupational experience. Despite the foregoing, as discussed above, the July 2010 VA examiner noted that the Veteran related several conditions which would preclude his continued working, diagnosed multiple disabilities, and opined that the Veteran's education, age, and diagnoses would preclude his working. She did not provide an opinion regarding whether the Veteran was unable to obtain and retain substantially gainful employment based on his service- connected disability, alone. Accordingly, the claims file should be returned to the July 2010 VA examiner to provide the requested opinion regarding the claim for a TDIU. The AMC/RO should arrange for the Veteran to undergo VA examination only if the physician who conducted the July 2010 VA examination is not available, or the designated physician is unable to provide the requested opinion without examining the Veteran. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The AMC/RO should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who treated him for his service-connected residuals of duodenal ulcer with partial gastrectomy, since April 2010. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the AMC/RO should forward the claims file to the physician that conducted the July 2010 VA examination, if available, for a supplemental medical opinion. The claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disability, alone, would preclude his obtaining and retaining substantially gainful employment consistent with his education and occupational experience. Adequate reasons and bases are to be provided in support of any opinion rendered. If further examination of the Veteran is deemed necessary, the AMC/RO should arrange for the appellant to undergo VA examination to obtain the above-noted opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and a notation to the effect that review of the claims file took place should be included in the report of the physician. The examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished and a comprehensive social, educational and occupational history should be obtained. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 4. After ensuring that the development is complete, re-adjudicate the claim. If not fully granted, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2010). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs