Citation Nr: 1312387 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-24 066A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to an increased rating in excess of 30 percent for service-connected duodenal ulcer post-operative partial gastrectomy and vagotomy ("duodenal ulcer"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the RO. The Veteran presented testimony before the undersigned Veterans Law Judge in October 2010. The hearing transcript has been associated with the claims folder. The Board remanded the case to the RO for additional development of the record and a VA examination in February 2011. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDING OF FACT The service-connected postoperative residual duodenal ulcer disease is shown to be productive of a disability picture that more nearly approximates one of moderate postgastrectomy syndrome with less frequent episodes of epigastic disorders with characteristic mild circulatory symptoms after meals, but with diarrhea and weight loss. CONCLUSION OF LAW The criteria for the assignment of an increased rating of 40 percent, but no higher, for the service-connected duodenal ulcer disease are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.114 including Diagnostic Code 7308 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A January 2004 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, an April 2009 notice letter was provided and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent a VA examination in May 2011 to obtain medical evidence as to the current severity of his service-connected disability pursuant to a February 2011 Board remand. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Rating Criteria and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The increased rating issue on appeal is one affecting the digestive system. General rating considerations for diseases of the digestive system are contained in 38 C.F.R. §§ 4.110 - 4.113. 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 by the instructions 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, 4.113. Ratings under Diagnostic Codes (DC) 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. 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 Veteran was granted service connection for duodenal ulcer (post-operative condition) with a disability rating of 20 percent by way of an RO rating decision in January 1994. In January 2004, the Veteran contended that his service-connected duodenal ulcer was more severely disabling than the 20 percent rating. An April 2005 RO rating decision increased the rating to 30 percent, effective in January 2004. The Veteran currently asserts that his disability should be at the next higher rating of 40 percent. The Veteran is currently rated under DC 7305-7348 although there are several diagnostic codes that may potentially apply. Under DC 7348, a 30 percent rating is warranted for symptoms and confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea. A 40 percent rating under this DC would require a showing of vagotomy with pyloroplasty or gastroenterostomy followed by demonstrably confirmative postoperative complications of stricture of continuing gastic retention. To the extent that the medical evidence does not show that there have been postoperative complications of stricture or continuing gastic retention, a higher rating under this code is not warranted. Under DC 7305, a 40 percent rating is warranted for a moderately severe peptic ulcer 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. The evidence does not show anemia or recurrent incapacitating episodes due to active peptic ulcer disease, and, therefore, a higher rating under this code is not warranted. Postgastrectomy syndromes are specifically rated under DC 7308, according to the following criteria. A rating of 20 percent is assigned for mild symptoms, defined as infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A rating of 40 percent is assigned for moderate symptoms, defined as episodes of epigastric distress less frequent than "severe" and with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A rating of 60 percent is assigned with severe symptoms, defined as associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms and weight loss with malnutrition and anemia. As will be explained, infra, the Board finds that the service-connected postoperative residuals of the duodenal ulcer disease is productive of a disability picture that more nearly approximates the criteria warranting a 40 percent rating under DC 7308. The Board does not find that any other digestive system diagnostic code would be more appropriate for rating the Veteran's gastrointestinal disability, including DC 7305 or DC 7348. See 38 C.F.R. § 4.114; see Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The VA treatment records from June 2004 explain the Veteran's history of surgery in 1987 consisting of a partial gastrectomy and vagotomy (on two occasions). At this time, the Veteran complained of loose bowel movements. He was not taking medication, there was no evidence of anemia, and his weight was stable at 175 pounds. In December 2004, the Veteran complained of having recurrent lower abdominal pain associated with intermittent and painful diarrhea over the past two years. He reported having periodic episodes of fecal incontinence. In February 2005, the Veteran still reported no change in bowel habits as he was still experiencing intermittent loose stools. In August 2005, he reported having chronic abdominal pain and diarrhea. An October 2005 VA treatment note indicated that the Veteran was having continuous diarrhea with 4 to 5 loose, watery stools daily with occasional incontinence. His weight at this time was noted to be stable. The physician assessed that the Veteran had blind loop syndrome given his gastrointestinal history (e.g. surgical operations of the abdomen). In his April 2006 statement, the Veteran complained of continuing incontinence issues. In May 2006, the Veteran underwent an esophagogastroduodenoscopy (EGD) due to his abdominal pain and diarrhea. Findings from the procedure revealed a normal stomach with evidence of a Billroth I anastomosis. No ulcers or masses were present. In May 2006, the Veteran underwent a VA examination for his stomach. The VA examiner noted that he had circulatory disturbances after meals. The Veteran denied having vomiting, constipation, colic or distention. However, he stated that, approximately 10 to 15 minutes after eating, he experienced a bathroom urgency. He reported experiencing periods of incontinence at least once a day, secondary to his urgency to use the bathroom. The Veteran reported having approximately 3 to 4 loose bowel movements daily. He had no history of anemia, although he had lost 10 pounds in the past year. The examiner reviewed the results of the EGD and found that bowel sounds were present and findings were normal. A September 2006 treatment note indicated that the Veteran still had chronic abdominal discomfort, reported nausea and vomiting, and diarrhea. In February 2007, the Veteran received emergency care as he was extremely fatigued and dehydrated, but the medical evidence suggested that this was likely due to neurological issues at the time. Still, the Veteran reported having nausea, vomiting, loose stools, and extreme fatigue. One month later, the Veteran denied having nausea, vomiting, any weight gain or loss, but he still had loose stools and reported right flank pain. A March 2007 treatment note indicates that the Veteran had lost 10 pounds over the course of two years. An April 2007 treatment note shows that the Veteran was still suffering from chronic diarrhea and abdominal discomfort. His incontinence due to his diarrhea had reportedly gotten worse as he had diarrhea in the middle of the night. A hearing with a Decision Review Officer was held in April 2007. The Veteran testified that he experienced nausea, ongoing diarrhea and incontinence, particularly in the evenings. He reported having to use adult diapers. His weight had fluctuated, plus or minus 10 to 12 pounds. He explained that he felt nausea if he did not eat often enough; thus, he ate ten times a day, and the food processed quickly. The Veteran described the inconvenience and the embarrassment he suffered at work as a result of his disability. The Veteran's wife submitted a statement attesting to the fact that the Veteran suffered from chronic diarrhea, having about 4 to 5 loose bowel movements daily (urgent and uncontrollable). She reported that, when he had an attack of diarrhea, he experienced cramping in his stomach so severe that he broke out into a cold sweat and became nauseous. She reported that he passed out in the shower, had weight fluctuating and wore adult diapers as a result of his incontinence. From June to July 2007, the Veteran reported that he had lost 5 pounds of weight. In August 2007, the Veteran denied weight loss. In October 2007, the Veteran reported having abdominal pain and diarrhea. In November 2007, the Veteran reported that his weight was stable. He was having 2 or 3 loose stools per day as controlled by medication. The VA treatment records from 2008 reveal that the Veteran was still having abdominal pain. The Veteran reported that his medications help control his chronic diarrhea. The VA treatment records from 2010 to 2011 reveal that the Veteran's gastrointestinal symptoms are being treated and controlled with medication. The Veteran testified at the hearing in October 2010 that, after consuming a meal, he would sweat and feel a little bit dizzy or faint. He reported having severe diarrhea on a daily basis and using adult diapers to deal with his continence. The Veteran testified about fluctuating within 5 pounds of his usual weight due to his severe bouts of diarrhea. He reported that his physicians have prescribed him an antibiotic for 30 days of treatment that usually brought his weight back up. On average, the Veteran reports having about 4 or 5 bouts of diarrhea daily. The Veteran was afforded a new VA examination in March 2011. The Veteran reported having moderate nausea, vomiting, and chronic sweating. There was no hematemesis or melena. He took daily medication to control his diarrhea and was responding well. The examiner noted that there was no circulatory disturbance after meals or hypoglycemic reactions. The Veteran reported having diarrhea for the past 10 years that was severe and constant in nature. The examiner noted no anemia or weight loss. It was documented that, in May 2010, the Veteran weighed 171.3 pounds. In October 2010, he was 175.2 pounds, and in March 2011, he was 174.1 pounds. The Veteran denied having any colic or distention but stated that, approximately 15 to 30 minutes after eating, he would have to use the bathroom right away. He experienced periods of incontinence at least once per day, secondary to his urgency. The examiner noted that there were no effects of this condition on occupational functioning and activities of daily living. Abdominal pain was "always present." The diagnosis rendered was that of post operative partial gastrectomy and vagotomy residuals, already service connected. Furthermore, the March 2011 VA examiner noted that the Veteran's current complaints were not consistent with what had been previously document in his treatment records. However, this appeared to be due to the fact that, at various outpatient follow-up visits, it had been noted that the Veteran's abdominal pain and diarrhea were reasonably well controlled with medication. In this regard, the Board observes that in Jones v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that VA committed a legal error when it considered the ameliorative effects of medication on the Veteran's disability where those effects were not explicitly contemplated by the rating criteria. Jones v. Shinseki, __ Vet. App. __ (Oct. 26, 2012), 2012 WL 527580 at *7. Thus, the Court held that where, as here, a Diagnostic Code was silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on any relief provided by medication. Id. In considering the holding in Jones, to the extent that the Veteran receives treatment with medication for chronic diarrhea, the Board finds that it must address the severity of the service-connected gastrointestinal disability when it is symptomatic. As documented by medical evidence dating from 2005 to 2007, the Veteran has consistently reported having loose stool, diarrhea, incontinence and abdominal pain for the period of the appeal. Although the Veteran's weight is shown to have been stabilized in recent times, there is evidence showing some weight loss that would be consistent with periods when he experienced increased manifestations. There is no current showing of malnutrition or anemia Significantly, the Veteran has provided credible testimony that, after consuming a meal, he would sweat and feel a little bit dizzy or faint and that, after approximately 15 to 30 minutes, he would need use the bathroom on an urgent basis. The Veteran is competent in reporting symptoms, as well as denying them, and in describing their impact because this information is within his personal experience. See Layno v. Brown, 6 Vet. App. 465 (1994) (concluding that lay witnesses are competent to provide testimony or statements relating to facts of events that the lay witness observed or that is within the realm of his/her personal knowledge). See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (collectively holding that factors for consideration in weighing credibility include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor). Thus, on this record, the Board finds that the medical and lay evidence of record tends to show that the Veteran's overall disability picture more closely resembles that of moderate postgastrectomy syndrome under the appropriate diagnostic code, 7308. See 38 C.F.R. § 4.7. A 60 percent rating is not assignable in this case as the medical and lay evidence does show findings of severe postgastrectomy syndrome that must include hypoglycemic symptoms, malnutrition or anemia. See DC 7308. For these reasons, the Board finds that an evaluation of 40 percent, but no higher, for the Veteran's duodenal ulcers (post gastrectomy syndrome) is warranted. See Gilbert, 1 Vet. App. at 55. Extraschedular Consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disability, as discussed, is manifested by symptomatology contemplated by the rating criteria. The Board finds that the rating criteria reasonably address the disability picture on appeal, as the functional impairments he describes (vomiting, nausea, diarrhea, weight loss) are already incorporated in the schedular criteria. As the rating criteria are therefore adequate to evaluate the Veteran's disabilities on appeal, the Board finds that referral for consideration of extraschedular rating is not warranted. ORDER An increased rating of 40 percent rating, but not higher for the service-connected residual duodenal ulcer disease is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs