Citation Nr: 1124361 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 06-19 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. What evaluation is warranted for a duodenal ulcer from September 19, 2005 to August 21, 2008? 2. What evaluation is warranted for a duodenal ulcer from August 22, 2008? 3. Entitlement to a total disability evaluation based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to January 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) in New York, New York, which increased the evaluation for a duodenal ulcer to 10 percent effective September 19, 2005. The Veteran appealed this decision to the Board. In June 2007, the Board denied the claim. Subsequently in March 2008 the Board vacated its decision and remanded the case for further development. By rating action in February 2009 the RO increased the rating to 40 percent effective August 22, 2008, the date of a VA examination. In June 2009, the Board found that a 40 percent disability rating was appropriate for the Veteran's duodenal ulcer from September 19, 2005 to August 21, 2008. In so deciding, however, noting that additional evidence was available which had not been reviewed by the RO, the Board reserved the possibility that a higher rating may be in order for any time during that period. The Board additionally remanded the issue of what evaluation was appropriate since August 22, 2008. The additional development requested in the June 2009 remand has been accomplished and the issues are now ready for adjudication. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In a March 2011 rating decision, the Veteran's disability rating was increased to 60 percent from August 22, 2008. 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 total disability evaluation on the basis of individual unemployability is addressed in the REMAND section of this decision, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. From September 19, 2005 to August 21, 2008, the evidence demonstrated symptoms to include chronic anemia, gastrointestinal bleeding, some weight loss, and impaired health. 2. From August 22, 2008, the evidence demonstrates symptoms to include periodic vomiting, diarrhea, weight loss with malnutrition and anemia. The Veteran is not shown to otherwise be disabled due to symptoms not contemplated by the schedular criteria. CONCLUSIONS OF LAW 1. From September 19, 2005 to August 21, 2008, the criteria for the assignment of a 40 percent disability rating for duodenal ulcer disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.114, Diagnostic Codes 7305, 7308 (2010). 2. From August 22, 2008, the criteria for the assignment of a 60 percent disability rating for duodenal ulcer disease have been met. The disability picture described in the rating schedule adequately describes the Veteran's symptomotology. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.20, 4.114, Diagnostic Codes 7305, 7308. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated October 2005 and May 2008 of the information and evidence needed to substantiate and complete his claims. The Veteran was provided with notice to include information regarding how disability evaluations and effective dates are assigned in May 2008. The issue was readjudicated in a February 2009 supplemental statement of the case. Thus, any timing error was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, providing VA examinations. There is no evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2010). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2 (2010), when assigning a disability rating, it is the present level of disability which is of primary concern. 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 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The criteria for rating diseases of the digestive system are set forth in 38 C.F.R. § 4.110-4.114, Diagnostic Codes 7200-7354. 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 38 C.F.R. § 4.14. 38 C.F.R. § 4.113. In this case, the Veteran's duodenal ulcer has been evaluated as 40 percent disabling since September 19, 2005, and 60 percent disabling since August 22, 2008, pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7305 and 7308. Under 38 C.F.R. § 4.114, Diagnostic Code 7305, a moderately severe duodenal ulcer manifested by symptoms less than "severe" but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year warrants a 40 percent rating. A 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 warrants a maximum 60 percent rating. Id. Under 38 C.F.R. § 4.114, Diagnostic Code 7308, when there are moderate less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss a 40 percent rating is warranted. Severe episodes associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms and weight loss with malnutrition and anemia warrant a 60 percent rating. Id. The Board has reviewed all the evidence in the Veteran's claims files that includes his written contentions, service treatment, private and VA medical records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Factual Background In a March 1944 rating decision the Veteran was granted entitlement to service connection for a duodenal ulcer and assigned a 10 percent evaluation. In a March 1947 rating decision the evaluation was reduced to a noncompensable rating. In a December 2005 rating decision, the RO increased the Veteran's rating to 10 percent. A February 2009 rating decision increased the Veteran's disability evaluation to 40 percent, effective August 22, 2008. Implementing the Board's June 2009 decision, the RO in August 2010, increased the evaluation to 40 percent from September 19, 2005 in August 2010. The rating was increased to 60 percent effective August 22, 2008 in a March 2011 rating decision. VA outpatient treatment records dated June 2003 to December 2005 show stable peptic ulcer disease. At a November 2005 VA examination, the Veteran reported a history of gastrointestinal bleeding in 1943 which resulted in a medical discharge. He described having, about once a year, stomach or duodenal incapacity for two days; as well as monthly episodes of abdominal colic, nausea, vomiting, and abdominal distention lasting one or more hours and of moderate severity. He reported heartburn, post-prandial nausea, upper abdomen pain/discomfort, and regurgitation which were symptoms of gastroesophageal reflux related to gastric or duodenal disease. He denied having a gnawing or burning pain. The Veteran had prior gastric surgery and reported post-prandial diarrhea, sweating, and weakness several times a week. The onset of these symptoms was 30 minutes to one hour after eating. On examination no weight loss was found. Blood tests showed signs of anemia and gastrointestinal bleeding. The Veteran was noted to be on a restricted diet. The diagnosis was peptic ulcer disease, Bilroth II. In a July 2008 statement in support of his claim, the Veteran reported weighing 150 pounds, down from a prior weight of 170 pounds. The Veteran underwent a VA examination in August 2008. The claims file, service medical records, private and VA medical records were reviewed. The examiner noted that the Veteran had been hospitalized in service and diagnosed with peptic ulcer disease. Post-service he was treated by a VA Medical Center and admitted for gastrointestinal bleeding. A procedure described as an upper Bilroth I was performed. Postoperatively he reported persistent symptoms compatible with gastroesophageal reflux disease. He used Mylanta four times a day and other medications with some relief. He described avoiding fatty acidic foods as they cause cramping and bloating. His bowel movements reportedly varied from very hard to somewhat loose, and he described occasional rectal leakage. He reported having two to four bowel movements daily and liquid bowel movements two to three times a week. He denied recent hematchezia or melena, but did report losing about 15 pounds in the last several years, and running a low grade anemia. Physical examination revealed the Veteran to weigh 146 pounds. There was a midline upper abdominal scar that descended and circumnavigated the umbilical to the right and proceeded downward for an additional inch. It was nontender slightly shaped up and not matted to the underlying tissue. Bowel sounds were hyperactive. No masses, bruits, tender areas, or organomegaly were noted. The extremities were well formed without edema or clubbing. The examiner noted that an October 2007 upper gastrointestinal series revealed a hiatal hernia and remnants of a partial gastrectomy with Bilroth I operation. The diagnosis was peptic ulcer disease, status post partial gastrectomy with Bilroth I procedure, with associated symptoms of a mild dumping syndrome, as described, and gastroesophageal reflux disease. The Veteran underwent a VA examination in order to determine the severity of his digestive disorders in October 2010. It was noted that there was no history of trauma or neoplasm. The Veteran denied periods of incapacitation due to stomach or duodenal disease. The Veteran reported symptoms of anorexia, diarrhea, pain, vomiting and weight loss. His symptoms reportedly began thirty minutes to an hour after eating and occurred several times a week. No episodes of hematemesis or melena were reported and a daily history of nausea was noted. The Veteran reported vomiting several times a week, early satiety and weight loss. It was noted that the Veteran had a Bilroth I surgery for a gastric ulcer but still experienced reflux at night for which he took antacids. An October 2007 upper gastrointestinal study series reportedly showed an esophageal reflux and a hiatal hernia. A lower gastrointestinal bleed was found in December 2005. A barium enema showed wide mouthed diverticulosis in the descending and sigmoid colon. X-ray findings were reported to show moderate esophageal reflux secondary to hiatal insufficiency; and status post Biliroth I procedure with no evidence of ulcer or obstruction at the anastomatic site. The remaining stomach appeared normal. The diagnoses included duodenal ulcer, gastroesophageal reflux disease and anemia. It was noted that the Veteran had missed less than a week of work in the prior year due to his disorder but his weight had dropped 14 pounds in 6 weeks due to loss of appetite, nausea and vomiting after eating and intermittent diarrhea. Analysis At the November 2005 VA examination the Veteran reported intermittent symptoms. He described heartburn, post-prandial nausea, upper abdomen pain or discomfort, regurgitation; and post-prandial diarrhea, sweating, and weakness several times a week. He had stomach or duodenal incapacity for two days, about once a year, with monthly episodes of abdominal colic, nausea, vomiting, and abdominal distention of moderate severity. On examination no weight loss was found, but blood tests showed signs of anemia and gastrointestinal bleeding. After careful review of the Veteran's statements, VA examinations, and the medical record, as found in the June 2009 decision, the Board again finds that from September 19, 2005 to August 21, 2008, the Veteran's disability picture more closely approximated the criteria for a 40 percent disability rating under 38 C.F.R. § 4.114, Diagnostic Codes 7305-7308. In this regard, there is evidence that throughout this period, the Veteran suffered from chronic anemia, gastrointestinal bleeding, some weight loss, and impaired health. As such, the Board finds that this symptomatology most nearly resembled a moderate symptoms of postgastrectomy syndrome with moderate to moderately severe duodenal ulcer disease. See 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7308. Hence, a 40 percent rating is assigned. As noted in the June 2009, Board remand, numerous medical records were added for initial review by the RO in order to determine whether a higher rating could be granted. Now having conducted an appellate review of those records, the Board finds that a higher rating is not warranted for this period. There is no evidence of a severe ulcer manifested by a definite impairment of health during this term. There is, for example, no evidence of malnutrition, hypoglycemia, or symptoms of a circulatory disturbance after meals. From August 22, 2008, however, the record demonstrates symptoms to include pain, periodic vomiting, anemia, weight loss and malnutrition as well as sweating and diarrhea. Such symptoms warrant a 60 percent disability rating from August 22, 2008. A sixty percent disability rating is the highest available rating under both diagnostic code 7305 and 7308. Therefore, the only higher rating available to the Veteran would be extraschedular. Initially, in determining whether an extraschedular rating is warranted, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). Here, the evidence shows that the Veteran's duodenal ulcer is appropriately contemplated by the rating schedule. There have been no period of hospitalization and the Veteran has not reported extended periods of incapacitation which might require such a rating. Therefore, referral for consideration of an extraschedular evaluation is not warranted. Id. ORDER Entitlement to a disability rating in excess of 40 percent between September 19, 2005 and August 21, 2008, is denied. Entitlement to a disability rating in excess of 60 percent from August 22, 2008, is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to at total disability evaluation based on individual unemployability is part of an increased rating claim when such claim is raised by the record. In this case, the October 2010 VA examiner stated that the Veteran's duodenal ulcer did not have significant effects on his employment. Since then, however, the Veteran has submitted a claim for increased compensation based on unemployability stating that he had only been able to work for approximately 30 hours in the last five months. Presently, it is unclear whether the Veteran is unemployed due to his service-connected disorder alone. Thus, the Board finds that the record has raised the issue of total disability based on individual unemployability and that, accordingly, further development is in order. Id. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining what information and evidence is necessary to substantiate a claim for total disability based on individual unemployability and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 2. The AMC/RO must take appropriate action to secure any and all pertinent records which have been identified but not previously secured for inclusion in the claims file. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative must then be given an opportunity to respond. 3. Thereafter, the AMC/RO should schedule the Veteran for a new VA examination with a gastroenterologist. The Veteran's claims folder, to include any newly obtained treatment records, must be provided to the examiner for review. The examining gastroenterologist must address the effect the Veteran's duodenal ulcer has on his ability to have substantially gainful employment. The gastroenterologist. must state whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's duodenal ulcer alone renders him unable to secure and follow substantially gainful employment. A full explanation of the rationale for any opinion rendered should be provided. 4. The Veteran is hereby notified that it is his responsibility to report for any ordered VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 5. The AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should adjudicate the issue of entitlement to TDIU in light of all pertinent evidence and legal authority. If the benefit is not granted, the Veteran and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs