Citation Nr: 1317737 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 09-44 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent disabling for post-operative residuals, duodenal ulcer. 2. Entitlement to a compensable evaluation for a right inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction was retained by the RO in Denver, Colorado. The Veteran requested a videoconference Board hearing, which was scheduled for December 5, 2012. Subsequently, the Veteran sent a request in writing that the scheduled hearing be canceled. Therefore, the Veteran's request for a Board hearing is considered withdrawn. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A. Duodenal Ulcer The Veteran's service-connected post-operative residuals of a duodenal ulcer are currently assigned a 20 percent disability rating under Diagnostic Code 7305, effective March 1, 1970. 38 C.F.R. § 4.114 (2012). The Veteran seeks an increased rating. The Veteran's post-operative residuals of a duodenal ulcer are currently rated under Diagnostic Code 7305, ulcer, duodenal, which provides a 10 percent disability rating for mild symptoms, with recurring symptoms once or twice a year. 38 C.F.R. § 4.114, DC 7305 (2012). A 20 percent rating is provided for a moderate symptoms, with continuous moderate manifestations, or recurring episodes of severe symptoms two or three times a year averaging 10 days in duration. A 40 percent rating is provided for moderately severe symptoms, with less than severe symptoms but with impairment of health manifested by anemia and weight loss, or incapacitating episodes four or more times a year averaging 10 days or more in duration. A 60 percent rating is provided for severe symptoms, 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. See 38 C.F.R. § 4.114 (2012). Although Diagnostic Code 7305 does not define "incapacitating episodes," a definition is found elsewhere under 38 C.F.R. § 4.114 in Note (2), which provides they are defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The Veteran was provided with a VA examination most recently in March 2011. The VA examiner noted, among other things, that the claims file was not available for review, that the Veteran was not anemic, and that he had no incapacitating episodes. The Board notes, however, that a review of the VA treatment records in the claims file shows that the Veteran was diagnosed with anemia in February 2009 ("very anemic") and prescribed iron daily, and that there was concern that there may have been blood loss in his colon. A subsequent June 2009 colonoscopy was normal and fecal occult blood testing was negative, but it was noted that a small bowel follow through could be ordered by the referring physician to further search for causes of his anemia. As noted above, a higher, 40 percent rating under Diagnostic Code 7305 contemplates, among other things, symptoms of anemia. Recent VA treatment records likewise reflect diagnosed anemia. See, e.g., May 2012. The Board adds that while the March 2011 VA examination report reflects that the Veteran was noted as having no incapacitating episodes, the Board is cognizant of the brevity of the March 2011 VA examiner's report, including regarding the Veteran's history and symptomatology, and that the Veteran alleges that his VA treatment records do not document all of his symptoms due to transportation difficulties. Also, the Board notes again that the claims file was not available for review. In light of all of the above, the Board finds that a remand is necessary so that a new VA examination may be provided to address the current severity of the Veteran's post-operative residuals of a duodenal ulcer, including a discussion of whether there are incapacitating episodes based on an interview of the Veteran and review of the claims file, and whether he experiences or has experienced anemia during the period on appeal related to his service-connected residuals of a duodenal ulcer. B. Right Inguinal Hernia The Veteran's service-connected right inguinal hernia is currently assigned a noncompensable rating under Diagnostic Code 7338, effective October 4, 1966. 38 C.F.R. § 4.114 (2012). The Veteran seeks an increased rating. Diagnostic Code 7338, inguinal hernia, provides a noncompensable rating if small, and reducible or without true hernia protrusion, or not operated but remediable; a 10 percent rating is provided for postoperative recurrent, readily reducible and well supported by truss or belt; a 30 percent rating is provided for small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible; a 60 percent rating is provided for large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable. The Veteran was most recently provided with a VA examination in March 2011 relating to his claim. While Diagnostic Code 7338 provides a compensable rating for certain recurrent symptoms, the examination report does not address whether the Veteran's right inguinal hernia is recurrent. In addition, as noted above, the March 2011 VA examination report is brief, the claims file was not available for review, and the Veteran otherwise alleges that his symptomatology may be more severe than that shown in the VA treatment records due to transportation issues. Therefore, the Board finds that it is not entirely clear given the above whether the Veteran's inguinal hernia is recurrent and otherwise meets the criteria for a higher, compensable rating. Because the March 2011 VA examination report does not contain sufficient information to rate the Veteran's right inguinal hernia disability, the Board finds that a remand is necessary to obtain a new VA examination to address the current severity of the Veteran's right inguinal hernia, including based on a review of the claims file, and including to address whether it is recurrent, and if so, whether it is adequately supported by a truss or belt and readily reducible. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination in order to determine the current severity of his a) post-operative residuals of a duodenal ulcer, and b) right inguinal hernia. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided. With regard to the duodenal ulcer, the examiner should specifically address whether the Veteran's duodenal ulcer is manifested by symptoms including: a) pain only partially relieved by standard ulcer therapy; b) periodic vomiting; c) recurrent hematemesis or melena; d) anemia; e) weight loss; f) anemia or weight loss productive of definite impairment of health; g) incapacitating episodes (a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician); and if so, please note the average number of days of duration and the average number of times per year. Also, the examiner is asked to address whether the Veteran's anemia shown in his VA treatment records is related to his service-connected duodenal ulcer or inguinal hernia (as opposed to being a symptom of an unrelated condition). With regard to the Veteran's right inguinal hernia, the examiner should specifically address whether the Veteran's inguinal hernia is: a) small; b) recurrent; c) readily reducible; and d) well supported by truss or belt; The examiner should also address the effect of the Veteran's duodenal ulcer and inguinal hernia on his activities of daily living and occupational functioning. 2. Then, readjudicate the matter(s) on appeal. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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).