Citation Nr: 18142762 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-05 422 DATE: October 16, 2018 ORDER Entitlement to a 60 percent rating for ulcers, postoperative (PO), beginning June 24, 2011 is granted, subject to the law and regulations governing the payment of VA monetary benefits. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the symptoms associated with the Veteran’s ulcers PO included chronic diarrhea, nausea, sweating, and weight loss with malnutrition and anemia. CONCLUSION OF LAW The criteria for entitlement to a 60 percent rating for ulcers PO have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.321, 4.114, Diagnostic Code 7308. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1958 to December 1958, and from August 1960 to January 1980. The Board of Veterans’ Appeals (Board) notes the Veteran requested an examination related to the instant appeal. However, as the decision herein grants the appeal in full by providing the maximum schedular rating throughout the period on appeal, there is no prejudice to the Veteran by not providing a VA examination. The record reflects that after December 2014 Statement of the Case (SOC), additional relevant evidence was added to the record. No Supplemental SOC was issued, but this is not necessary as there is sufficient evidence to grant the Veteran’s claim with the maximum schedular rating. And as the Board is remanding the remaining the issue of entitlement to TDIU, there is no prejudice to the Veteran. The Board notes that, in his February 2015 substantive appeal, the Veteran requested a Board hearing. However, a September 2015 motion to withdraw reflected his desire to withdraw such hearing request. 38 C.F.R. § 20.704. The Board observes that the Veteran has asserted in numerous correspondences that he is unable to perform many basic activities of daily living. Further, the Veteran submitted Examinations for Housebound Status or Permanent Need for Regular Aid and Attendance in in April 2014, December 2014, and August 2018 ; and anemia and diarrhea were noted on the examinations. Therefore, the Board notes that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to a rating in excess of 40 percent for ulcers PO Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7308 for postgastrectomy syndromes, a 40 percent rating requires moderate postgastrectomy syndrome, with less frequent episodes of epigastric disorders than seen in severe cases, with characteristic mild circulatory symptoms after meals, but with diarrhea and weight loss. A 60 percent rating requires severe postgastrectomy syndrome, with associated nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114, Diagnostic Code 7308. The Board notes ratings under Diagnostic Code 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture, with rating to the next higher evaluation where the severity of the overall disability warrants such rating. See 38 C.F.R. § 4.114. August 2010 private treatment notes show weight loss and nausea. January 2011 private treatment notes show a B-12 deficiency. October 2011 private treatment notes provide evidence of diarrhea. The Veteran provided a Stomach and Duodenal Conditions Disability Benefits Questionnaire in March 2012. The examiner noted the Veteran had daily symptoms only partially relieved by medications. The Veteran had nausea, and the Veteran experiencing incapacitating episodes 1-9 days a year. The examiner did not provide a positive finding for anemia, and determined the Veteran’s symptoms to be moderate. In May 2012, the Veteran’s wife provided lay evidence of her husband experiencing diarrhea, sweating, nausea. She also contended he was being treated for anemia with monthly B-12 shots. A June 2013 VA treatment note showed the Veteran’s anemia was being treated with B-12 shots. VA treatment notes also show the Veteran was clinically underweight and working with a registered dietician to gain weight. The Veteran’s weighed 132 lbs. in April 2011 and 119 lbs. in September 2013. The Board finds the Veteran’s symptoms most closely approximate a 60 percent evaluation. The Veteran’s medical records show a consistent history of experiencing diarrhea and nausea. The Veteran’s wife provided credible and competent lay evidence of the witnessing the Veteran sweating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The medical evidence consistently shows the Veteran’s medications for to his low B-12 levels, and the note from June 2013 VA treatment note confirmed the B-12 medications were in relation to anemia. Additionally, the Veteran reported only eating one meal a day, and VA treatment notes provided evidence of the Veteran’s weight loss. Accordingly, based on the totality of the record, a 60 percent disability rating is warranted for the Veteran’s ulcer PO throughout the entirety of the appeal period. The Board notes, a 60 percent rating is the maximum schedular rating under Diagnostic Code 7308. The Board has considered whether another Diagnostic Code would afford the Veteran a higher rating, however, the Veteran’s symptomatology does not warrant rating under another Diagnostic Code. 38 C.F.R. § 4.114. REASONS FOR REMAND Entitlement to TDIU is remanded. The Board finds the evidence in this case has reasonably raised a claim for TDIU in conjunction with the appeal for higher initial disability rating for ulcers PO. Rice, supra. As such, remand for additional development is necessary. The Veteran has not been provided with 38 C.F.R. § 3.159(b) notice of the requirements for a TDIU claim, and such notice should be provided on remand. Additionally, the Veteran should be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. The matter is REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Send the Veteran proper notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) informing him of what is needed to substantiate a claim for TDIU. The Veteran should also be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel