Citation Nr: 1336953 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-16 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for service-connected residuals of vagotomy with pyloroplasty for ulcer disease, currently evaluated as 40 percent. 2. Entitlement to an increased disability rating for service-connected scar, residual of epigastric hernia, currently evaluated as 10 percent. 3. Entitlement to service connection for acquired psychiatric disorder to include major depression, claimed as secondary to service-connected disabilities. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated October 2008 and February 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran was scheduled to appear at the San Juan RO in May 2011 to have a hearing before a decision review officer (DRO). He failed to appear for said hearing, and he has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND For the reasons expressed below, the Board finds that the claims on appeal must be remanded for further development. With respect to the claim of entitlement to an increased rating for residuals of vagotomy with pyloroplasty for ulcer disease as well as the claim of entitlement to TDIU, the Veteran has repeatedly contended that he is unable to work as a result of his service-connected vagotomy with pyloroplasty. See, e.g., the claim dated July 2008 and the July 2008 VA psychological examination. However, in the July 2008 examination report, the examiner indicated the Veteran reported that his residuals of vagotomy with pyloroplasty had no occupational effects. Additionally, in the February 2011 VA examination report, the examiner stated that the Veteran's vagotomy with pyloroplasty has no significant effects on his occupation. The Board thus observes that at no time during this appeal has the Veteran been provided a VA examination that adequately discusses the effect of his service-connected residuals of vagotomy with pyloroplasty on his ability to secure and follow substantially gainful employment. Accordingly, the evidence of record is unclear concerning the current nature and extent of the Veteran's service-connected residuals of vagotomy with pyloroplasty for ulcer disease; a contemporaneous examination is needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the current severity of the symptoms associated with the service-connected residuals of vagotomy with pyloroplasty and to the extent of functional occupational impairment associated with this service-connected disability. In addition, the Board recognizes the contentions of the Veteran's representative that the Veteran's service-connected residuals of vagotomy with pyloroplasty should be rated under Diagnostic Code (DC) 7308 [postgastrectomy syndromes] due to manifestations of dumping syndrome. See the Appellant's brief dated October 2013. To this end, the Veteran is currently rated at 40 percent under DC 7348 [vagotomy with pyloroplasty or gastroenterostomy], which is the maximum schedular evaluation. A note to DC 7348 instructs adjudicators to rate recurrent ulcer following complete vagotomy under DC 7305 and rate dumping syndrome under DC 7308. It is unclear whether the Veteran's vagotomy is complete or incomplete; accordingly, upon Remand, the AOJ should additionally consider rating the Veteran's service-connected residuals of vagotomy with pyloroplasty symptomatology under both DC 7305 and DC 7308. As to the claim of entitlement to an increased disability rating for service-connected scar, residual of epigastric hernia, the Veteran has asserted that his surgical scar symptomatology is worse than is contemplated by the currently assigned rating. See, e.g., the Veteran's claim dated October 2008. The Veteran was afforded a VA examination in January 2009 at which time the examiner noted the Veteran's contention that the surgical scar had developed herniation and had become increasingly painful. Upon physical examination, the examiner described the Veteran's scar as a mid-line surgical scar in abdomen which runs from xiphoid appendix to approximately two inches below the umbilicus. The examiner observed that there was a small herniation in the area of the umbilicus. A review of VA treatment records indicates that the Veteran's umbilical hernia persisted and he was to be scheduled for an umbilical hernia repair. See the VA treatment records dated November 2011. The evidence of record is therefore unclear concerning the current nature and extent of the Veteran's service-connected scar, residual of epigastric hernia. Thus, to ensure that the record reflects the current nature and extent of the scar, a contemporaneous examination is needed. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer, supra; Green, supra; & Caffrey, supra. With regard to the claim of entitlement to service connection for an acquired psychiatric disorder to include major depression, the Veteran was afforded a VA examination in July 2008 at which time the examiner indicated that he was not currently suffering from any mental disorder. However, recently received private treatment records repeatedly document a continuing diagnosis of major depression. See the private treatment records dated January 2012. In addition, a January 2012 discharge summary indicates diagnoses of major depression (acute stress disorder) and rule-out posttraumatic stress disorder (PTSD). In support of his claim, the Veteran submitted a private psychological evaluation from Dr. J.R.R.C. In his May 2011 report, Dr. J.R.R.C. diagnosed the Veteran with major depression. The Board recognizes that in the May 2011 evaluation, Dr. J.R.R.C. indicated that the Veteran's major depression is secondary to his service-connected stomach disability. However, in rendering his opinion, Dr. J.R.R.C. failed to address the Veteran's history of chronic alcohol abuse which is repeatedly documented in his treatment records. See, e.g., the VA treatment records dated November 2009 and May 2010. Thus, there remain questions as to current diagnosis and etiology of the claimed acquired psychiatric disorder. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim) and Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A remand for a new VA examination should therefore be accomplished in order to address these outstanding questions with respect to the Veteran's claimed acquired psychiatric disorder to include major depression. Additionally, review of the record reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records dating from April 2012. All such available documents should be associated with the claims file. 2. Then, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected residuals of vagotomy with pyloroplasty for ulcer disease. Conduct all testing and evaluations indicated and review the results of any testing prior completion of the examination report. The examiner should detail the symptomatology associated with the Veteran's service-connected residuals of vagotomy with pyloroplasty for ulcer disease. The examiner should indicate whether the residuals of vagotomy with pyloroplasty for ulcer disease manifest as demonstrably confirmative post-operative complications of stricture or continuing gastric retention. The examiner should address whether the Veteran has recurrent ulcers with symptoms characterized as: mild (with recurring symptoms once or twice yearly); moderate (recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations); moderately severe (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); or severe (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). The examiner should also state whether the Veteran suffers from postgastrectomy syndromes to include dumping syndrome characterized as: mild (infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations); moderate (less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss); or severe (associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia). In addition, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. The rationale for all opinions expressed by the VA examiner should also be provided. If the examiner is unable to provide an opinion as to one of the questions posed, he/she should state the reasons therefore. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected scar, residual of epigastric hernia. Conduct all testing and evaluations indicated and review the results of any testing prior completion of the examination report. The examiner should detail the symptomatology associated with the Veteran's service-connected scar, residual of epigastric hernia. In particular, the examiner should provide a detailed description, including but not limited to, the following: (1). the size of the scar and scar area in square inches or square centimeters; (2). whether the scar is superficial (not associated with underlying soft tissue damage); (3). whether the scar is deep (associated with underlying soft tissue damage); (4). whether the scar is unstable (with frequent loss of covering of skin over the scar); (5). whether the scar is well-healed, painful, tender, adherent, and/or ulcerated; (6). whether the scar causes limited motion or other limitation of function of an affected bodily part; if so, the physician should describe in detail the limitation(s), and extent and severity thereof. If the scar does not cause limited motion or other limitation of function of an affected bodily part, the examiner should specifically so state in the examination report. In addition, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. The rationale for all opinions expressed by the VA examiner should also be provided. If the examiner is unable to provide an opinion as to one of the questions posed, he/she should state the reasons therefore. 4. Schedule the Veteran for a VA examination with a medical professional of appropriate expertise to determine the nature and etiology of the claimed acquired psychiatric disorder to include major depression. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent symptomatology should be annotated in the examination report. Pertinent testing deemed necessary should be accomplished; the results of any such studies should be included in the examination report. Following review of the claims file and examination of the Veteran, the examiner should either diagnose or rule out an acquired psychiatric disorder to include major depression. If such a disability is diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that it had its clinical onset in service or is otherwise related to service, or was caused or aggravated by his service-connected disabilities. If aggravated, specify the baseline of the acquired psychiatric disorder prior to aggravation, and the permanent, measurable increase in psychiatric symptomatology resulting from the aggravation. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. Thereafter, readjudicate the claims on appeal. In readjudicating the Veteran's claim of entitlement to an increased rating for service-connected vagotomy with pyloroplasty, consideration should be given to whether the disability should be rated under DCs 7305 and 7308. If any benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. The Veteran 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). No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2013). These claims 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 (Court) 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2013).