Citation Nr: 1117277 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 09-30 859 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 40 percent for residuals of gastrectomy with posterior gastroenterostomy. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1948 to September 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the VA Special Processing Unit (Tiger Team) at the RO in Cleveland, Ohio, which continued a 40 percent rating for gastrectomy with posterior gastroenterostomy. In June 2010, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. The Board remanded this case in June 2010. On remand, the Agency of Original Jurisdiction (AOJ) issued a February 2011 rating decision granting service connection for spastic colon and assigning a 10 percent disability rating. The Veteran has not appealed this decision. 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). FINDING OF FACT The Veteran's residuals of gastrectomy with posterior gastroenterostomy are manifested by nausea, sweating, weakness, shaking, diarrhea, upper abdominal pain with cramping, excessive flatus and chronic anemia without vomiting, hematemesis, melena, malnutrition or recurrent ulceration. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for residuals of gastrectomy with posterior gastroenterostomy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7308 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In the interest of clarity, the Board will first discuss certain preliminary matters. Then the Board will render a decision. The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Board remanded the issue currently on appeal in June 2010. The Board instructed the AOJ to obtain outstanding VA treatment records relating to the Veteran's service-connected disability, schedule the Veteran for a VA examination to evaluate the current severity of his residuals of gastrectomy with posterior gastroenterostomy, and readjudicate the claim. On remand, the Veteran's outstanding VA treatment records were associated with the claims file, and he was provided a VA examination in October 2010. Thereafter, the claim was readjudicated in a January 2011 supplemental statement of the case (SSOC). Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. During the pendency of the appeal, the VCAA notice requirements were interpreted as follows. For an increased compensation claim, the veteran must be notified that he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (Vazquez-Flores I). The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require 'daily life' evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II) (vacating and remanding in part Vazquez-Flores I). Most recently, the Court clarified that the notice must advise the veteran to submit evidence demonstrating the effect that the worsening of his disability has on his employment. Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letter advised the Veteran of the information necessary to substantiate the increased rating claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim, and advised to send any medical reports that he had. He was also told that it was ultimately his responsibility to support the claim with appropriate evidence. In addition, the letter provided the Veteran with notice concerning the assignment of disability ratings, which included consideration of the impact of the disability on employment, and effective dates. See Vazquez-Flores III, supra. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the claims file. Private medical records identified by the Veteran have also been associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). The RO provided the Veteran appropriate VA examinations in October 2007 and October 2010. The Board finds these opinions to be comprehensive and sufficient in addressing the severity of the Veteran's disabilities. In particular, the examinations are adequate upon which to base a decision here because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to a recent CT scan. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Increased Rating The Veteran seeks an increased rating for his service-connected residuals of gastrectomy with posterior gastroenterostomy, currently evaluated as 40 percent disabling. For the reasons that follow, the Board finds that a higher rating is not warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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. In this case, 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. The use of hyphenated Diagnostic Code numbers indicates that the RO assigned a rating under the first Code number using the criteria of the second Code. See 38 C.F.R. § 4.20; see also 38 C.F.R. § 4.114, Diagnostic Code 7348, infra. 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 as outlined in § 4.14. 38 C.F.R. § 4.113 (2010). The Veteran is presently assigned a 40 percent disability rating under Diagnostic Code 7308 for his residuals of gastrectomy with posterior gastroenterostomy. Under Diagnostic Code 7308, postgastrectomy syndrome is rated 40 percent where there is moderate postgastrectomy syndrome with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals than are characteristic of a severe syndrome, but with diarrhea and weight loss. A 60 percent evaluation requires a severe postgastrectomy syndrome associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114, Code 7308 (2010). VA treatment records reflect treatment for numerous different medical conditions, including gastrointestinal (GI) problems. The Veteran's weight is shown to have fluctuated over the years, from as high as 225 pounds in March 2009 to as low as 185 pounds in April 2010. In April 2009, he reported that he had lost 10 pounds in the last 15 days due to decreased appetite. The following month, it was noted that the Veteran had lost 25 pounds over the past five months, and that 15 pounds had been lost acutely in March when he was hospitalized for congestive heart failure with fluid retention. It was noted that the most likely cause for the recent 10-pound weight loss was his increase in depression and memory loss with associated decreased appetite. In June 2009, the Veteran's weight loss was noted as being likely secondary to depression. In October 2009, it was noted that the Veteran had lost 25 pounds again in the past few months. In November 2009, he stated that he had lost more weight since the last visit but had regained his appetite with an improvement of his depression. A couple days later, he reported having lost 80 pounds when he was ill and that he had since gained half of it back. The Veteran was afforded a VA examination in October 2007. At the time, the Veteran was noted as having diarrhea two to three times a day, abdominal discomfort about once a week, occasional nausea, and hypoglycemic reactions about once every week or two, which was usually quickly corrected with a glass of juice. He reported having had bright red stool per rectum. The Veteran denied vomiting, hematemesis, melena, and constipation. He was currently taking omeprazole. There was no history of peritoneal adhesions, periods of incapacitation due to stomach disease, or history of neoplasms. The Veteran described a discomfort in the abdomen that lasted several minutes at a time and occurred about once a week. On physical examination, the Veteran weighed 207 pounds, which reflected a weight gain of 17 pounds within the past year, up from 190 pounds. There were no outward signs of anemia and no evidence of cyanosis, pallor or rubor. The abdomen was soft, nontender, and not distended. Bowel sounds were present in all 4 quadrants. Findings were negative for any pain on palpation, masses, organomegaly, and bruits. An upper GI series demonstrated postsurgical changes of the stomach and minimal gastroesophageal reflux. The diagnosis was residuals of gastrectomy. At the June 2010 Travel Board hearing, the Veteran testified that his condition had worsened since the October 2007 examination. Specifically, he reported symptoms of discomfort after eating which required him to lie down, diarrhea three or four times a day, pain in the stomach, nausea, frequent sweating, episodes of low blood sugar at least two or three times a week, and an estimated weight loss of 20 to 25 pounds. He also indicated that he was taking iron pills for his anemia. The Veteran was provided another VA examination in October 2010. It was noted that the Veteran was currently taking omeprazole and was being treated symptomatically. The Veteran experienced postprandial weakness, sweating and rare nausea 3 to 4 times per week. The symptoms started as quickly as 30 minutes after eating; at times, drinking some orange juice helped make him feel better. He denied vomiting, hematemesis, melena, and any history of neoplasms. The Veteran reported having loose, watery stools 3 to 4 times per day, which was precipitated by upper abdominal cramping; he also had "intense" flatus. He denied blood or mucous in his stools. Regarding peritoneal adhesions, the Veteran reported prior episodes of colic, distention, nausea and/or vomiting. He also reported experiencing daily abdominal distention related to eating. As for periods of incapacitation due to stomach or duodenal disease, the Veteran indicated that he did not do things because of his back pain and depression and that he could not tell if it was his stomach problems or the back pain and depression that caused incapacitation. The Veteran denied any recent hospitalizations or surgeries related to his disability. In terms of effects on occupational functioning in activities of daily living, the Veteran stated that he often had to either lie down after eating or had diarrhea, which affected his activities of daily living. After eating, the Veteran experienced sharp, cramping pain, which radiated from his left upper quadrant to his right upper quadrant; at times moving his bowels would help, and other times resting would help. On physical examination, the abdomen was soft with mild pain on palpation to the right and left upper quadrants without any appreciable masses or organomegaly. Bowel sounds were positive in all quadrants. There was a reducible umbilical hernia. The examiner noted that overall the Veteran's weight was down about 30 pounds from two years ago, but that it was up 12 pounds from the previous year. The Veteran had longstanding anemia with associated pale skin and lower inner eyelids cardiac. A KUB x-ray demonstrated a normal gas pattern. Following review of the results of an October 2009 CT scan of the abdomen, the diagnosis was duodenal ulcer(s) status post remote gastrectomy with posterior gastroenterostomy. The examiner noted that the fact that some of the Veteran's cramping and flatus improved with a bowel movement were significant for a diagnosis of spastic colon. Although diverticulitis was documented on CT scan, the Veteran did not have any signs or symptoms of diverticulitis. In order to meet the criteria for a higher rating of 60 percent under Diagnostic Code 7308, the evidence must show a severe postgastrectomy syndrome associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114. Here, the Veteran is shown to have chronic anemia. He experiences daily debilitating post prandial nausea, weakness, shaking, upper abdominal pain with cramping, excessive flatus and at least five liquid to soft bowel movements per day. VA treatment records reflect fluctuating weight over the years, with periods of significant weight loss. However, this weight loss is not shown to be associated with his GI problems. Rather, it has been attributed to his depression and loss of appetite, and hospitalization for congestive heart failure. In addition, although the Veteran has chronic anemia, there is no evidence of malnutrition. Thus, the Veteran is not shown to have weight loss with malnutrition and anemia. As this symptom is required for a 60 percent rating under Diagnostic Code 7308, the Board concludes that the criteria for a rating in excess of 40 percent have not been met. See 38 C.F.R. § 4.114. Taking into account all of the relevant evidence of record, the Board finds that the Veteran's residuals of gastrectomy with posterior gastroenterostomy do not rise to a severe level under Diagnostic Code 7308. The Board has considered other possible avenues for a higher rating. However, as previously noted, the AOJ recently issued a February 2011 rating decision granting service connection separately for spastic colon and assigning 10 percent rating under Diagnostic Code 7319. The Veteran has not initiated an appeal of that decision. As the evaluation of spastic colon is not an issue presently on appeal, the Board cannot consider the symptomatology and effects of that condition in evaluating the Veteran's entitlement to an increased rating for residuals of gastrectomy with posterior gastroenterostomy. See 38 C.F.R. § 4.14. Thus, the schedular criteria for Diagnostic Code 7319 is not for application here. Diagnostic Code 7305 provides ratings for duodenal ulcer. Moderately severe duodenal ulcer, with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year, is rated 40 percent disabling. Severe duodenal ulcer, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health, is rated 60 percent disabling. 38 C.F.R. § 4.114. On review of the Veteran's medical records, there is no confirmed recurrence of ulceration. Additionally, he is not shown to have recurrent hematemesis, recurrent melena, or weight loss productive of definite impairment of health that is associated with his service-connected disability. As such, the Board concludes that a higher rating of 60 percent under the schedular criteria of Diagnostic Code 7305 is not warranted. 38 C.F.R. § 4.114. The Ratings Schedule also provides evaluations for vagotomy with pyloroplasty or gastroenterostomy (Diagnostic Code 7348). 38 C.F.R. § 4.71a. However, the highest rating available under Diagnostic Code 7348 is 40 percent. As the Veteran is already assigned a 40 percent rating, an even higher rating under Diagnostic Code 7348 is not available. In light of the foregoing, the Board concludes that the criteria for a rating in excess of 40 percent under Diagnostic Codes 7305 and 7308 have not been met. The Board also concludes that Diagnostic Codes 7319 and 7348 are not for application. As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, the Board has considered the rule for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 40 percent have been met at any time during the period on appeal, the Board concludes that staged ratings are inapplicable. Finally, the Board has considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's residuals of gastrectomy with posterior gastroenterostomy is not inadequate. His complained-of symptoms are those contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. It does not appear that the appellant has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. ORDER A disability rating in excess of 40 percent for residuals of gastrectomy with posterior gastroenterostomy is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs