Citation Nr: 1308792 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 10-10 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 40 percent for residuals, antrectomy, vagotomy, and gastrojejunostomy due to duodenal ulcer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from March 1946 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. A March 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran's residuals of an antrectomy, vagotomy, and gastrojejunostomy due to duodenal ulcer is current evaluated under Diagnostic Code 7308, which pertains to the evaluation of postgastrectomy syndromes. 38 C.F.R. § 4.114 (2012). Under that code, a 40 percent disability rating is assigned for moderate postgastrectomy syndromes evidenced by less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. Id. A 60 percent disability rating is assigned for severe postgastrectomy syndromes associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Id. A brief review of the evidence indicates that VA examinations were conducted in May 2008 and November 2010. The November 2010 report indicated that the Veteran experienced symptoms of bloating, sweating and weakness, 30 minutes after eating. Weight was listed as 186 pounds, described as a 10% loss compared to baseline. The report reflected that there was no indication of significant weight loss, malnutrition, or anemia. Thereafter, another examination report of December 2012 was issued; however, the record indicates that this was based solely on a review of records and not on an interview and/or physical examination of the Veteran pursuant to the Acceptable Clinical Evidence (ACE) protocol. Accordingly, that examination report fails to include any documentation of the nature, frequency and duration of the Veteran's symptoms based on his lay account and does not contain any information about his weight. The report simply stated that that there had been no significant change in the Veteran's condition since he was last evaluated in November 2010. No information was provided regarding symptoms of abdominal pain, anemia, weight loss, vomiting, all of which are critical considerations for the determination of an accurate rating. Moreover, the report cited to VA treatment records that are not currently of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, it appears that there are some inadequacies in conjunction with the December 2012 VA examination report, such as the failure to consider lay evidence or to provide clinical information critical to determine the level of severity of the Veteran's gastrointestinal condition. Accordingly, the Board finds that a remand is necessary in order to afford the Veteran a VA examination that includes specific findings relevant to the rating criteria that takes into account his lay report of symptoms as well as clinical findings. The Board also observes that the VA treatment records in this case are not up to date. In this regard, VA records current to November 2007 are on file. Additionally, while the January 2010 statement of the case indicated records dated through January 2010 were considered, a review of the record reveals that such only contain a problem list and laboratory findings. Moreover, the December 2012 VA examiner cited to treatment records not contained in the claims file or on Virtual VA. Therefore, VA records from the Louisville, Kentucky, VA Medical Center dated from November 2007 to the present should be obtained for consideration in the Veteran's appeal. Finally, the Board notes that the Veteran is service-connected for residuals of his antrectomy, vagotomy, and gastrojejunostomy due to duodenal ulcer, and the November 2010 VA examiner indicated that the Veteran had a B12 deficiency secondary to his surgery (antrectomy, vagotomy, and gastrojejunostomy) and had peripheral neuropathy that was at least as likely as not secondary to the B12 deficiency. Likewise, the December 2012 VA examiner noted that the Veteran had a residual vitamin B12 deficiency from his gastrointestinal surgery. As such, upon readjudication of the Veteran's claim, the agency of original jurisdiction (AOJ) should specifically consider whether he has any residuals of his antrectomy, vagotomy, and gastrojejunostomy that are not contemplated in the currently assigned rating under Diagnostic Code 7308, to include peripheral neuropathy. 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) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records from the Louisville VA Medical Center dated from November 2007 to the present. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After any/all outstanding records and/or responses have been associated with the claims file, the Veteran should be afforded an in-person VA examination conducted by an appropriate examiner to evaluate his gastrointestinal disorder. In this regard, the entire claims file, to include a complete copy of this REMAND, should be provided for the examiner and review of these items should be documented in the examination report. The examiner should elicit from the Veteran lay reports regarding his symptoms, particularly as related to the nature, frequency and duration of such. All appropriate tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. In addition, all currently manifested gastrointestinal conditions should be diagnosed. The examiner should specifically discuss whether and how often the Veteran experiences symptoms of: nausea, sweating, circulatory disturbance after meals, diarrhea, and hypoglycemic symptoms, and should be asked to characterize the overall level of such collective symptoms as moderate or severe. The Veteran's weight should be recorded and should be compared to a baseline or earlier recordation of weight, to determine whether any appreciable weight loss has been shown since the Veteran was last examined in 2010. The examiner should specifically address whether there are any indications of malnutrition or anemia. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. The AOJ should specifically consider whether the Veteran has any residuals of his antrectomy, vagotomy, and gastrojejunostomy that are not contemplated in the currently assigned rating under Diagnostic Code 7308, to include peripheral neuropathy. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).