Citation Nr: A19003680 Decision Date: 12/19/19 Archive Date: 12/18/19 DOCKET NO. 190528-9551 DATE: December 19, 2019 ORDER A 40 percent rating (but no higher) for residuals of esophageal cancer with dumping syndrome is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT For the entire rating period on appeal the Veteran’s service-connected residuals of esophageal cancer with dumping syndrome have more nearly approximated moderate postgastrectomy syndrome symptoms including less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss, but not nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. CONCLUSION OF LAW For the entire rating period on appeal, the criteria for a 40 percent rating (but no higher) for service-connected residuals of esophageal cancer with dumping syndrome are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 7308, 7346, 7348. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to July 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) (to be codified as amended in scattered sections of 38 U.S.C.). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review dated on or after February 19, 2019. As this case is based on a VA rating decision dated May 2019, this appeal has been considered consistent with the new AMA framework. In May 2019, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal). He elected the “Direct Review” lane, indicating he did not want a Board hearing and would not submit any additional evidence in support of the appeal. In a July 2019 notice, the Board acknowledged the Veteran’s appeal request and informed him that the appeal had been placed on the Direct Review docket. Under the AMA, when a claimant seeks appellate review through the Board’s Direct Review docket, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113(a)). Moreover, the Board is bound by favorable findings in the Rating Decision on appeal. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)). Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Regarding the claim for a total disability due to individual unemployability (TDIU), the U.S. Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in this instance, the Veteran filed an earlier and separate claim for TDIU which was most recently denied by the RO in a December 2018 Rapid Appeals Modernization Program (RAMP) rating decision. The Veteran appealed that decision and chose the evidence submission lane. See April 2019 VA Form 10182. This appeal is presently pending before the Board on the Evidence Submission docket enabling the Veteran and his representative to submit further evidence in support of the TDIU claim. See August 2019 Board correspondence. Accordingly, the Board will not address the issue of TDIU in this decision and afford the Veteran the opportunity to fully develop this claim as required by law. 1. Entitlement to a rating in excess of 30 percent for residuals of esophageal cancer. Increased Rating Claims-Legal Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, if they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Merits The Veteran is currently assigned a 30 percent rating for the residuals of his esophageal cancer. He contends his symptoms have worsened and a higher rating is warranted. The Veteran’s residuals of esophageal cancer are currently rated under Diagnostic Code 7346 for hiatal hernia. Under Diagnostic Code, symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health warrant a 60 percent rating. Persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, warrants a 30 percent rating. Two or more of the symptoms for the 30 percent rating of less severity warrant a 10 percent rating. 38 C.F.R. § 4.114, DC 7346. In a May 2019 VA examination report, the Veteran was noted to have persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and mild nausea lasting less than one day with 4 or more episodes per year. Material weight loss, vomiting, hematemesis, and melena with moderate anemia were not noted. The Veteran also reported he was unable to eat more than 6 ounces at a time, had frequent regurgitation and struggled to maintain his weight. The Veteran specifically noted that he had frequent bad cramping and pain, could not bend over without regurgitating and had dumping syndrome that caused frequent diarrhea. The examiner noted that the Veteran took multiple medications several times a day to manage the symptoms caused by the residuals of his esophageal cancer. In support of his claim, the Veteran submitted a private narrative letter from his treating oncologist regarding his condition. See January 2019 Narrative Letter Dr. D.W.C., Mercy Hospital. Dr. D.W.C. noted that the Veteran’s gastric pull procedure (which occurred after the esophagus was resected due to esophageal carcinoma) resulted in dumping syndrome. Presently, if the Veteran ingested a significant volume of food the result was urgency and frequency of diarrheal stools. Dr. D.W.C. noted the Veteran required a difficult regimen of 6 small meals per day, which nevertheless often resulted in dumping after the small meals. Id. Notably, he also indicated that the Veteran continued to lose weight despite “valiant attempts” at maintaining a high calorie input which had led to a decline in both muscle mass and stamina. A February 2019 narrative letter from the Veteran’s primary care physician Dr. G.W.K also stated the Veteran suffered from numerous abdominal complications where a gastric pull was performed, and that the ingestion of food could cause urgency of diarrhea accompanied with severe cramps and gas. VA treatment notes from the Joplin VA Medical Center (VAMC) spanning the dates of October 2015 through May 2019 document that the Veteran lost 22 pounds in six months and could only eat small amounts or had stomach pain. Boost liquid caused the same result. See March 2016 Nutrition Consult. A Pet Scan conducted in March 2019 was abnormal in the stomach region and indicated that the Veteran had an elevated CEA. See March 2019 Telecare Note. Finally, an April 2019 Primary Care Nursing Note confirmed that a one-year follow-up with fasting labs and an EGD test determined that the Veteran had Barrett’s esophagus, an inflamed stomach, and increased pain in his right hand. His weight was 161 pounds. Throughout the appeals period, the Veteran’s residuals of esophageal cancer have been productive of symptoms of pain, persistently recurrent epigastric distress, some weight loss, positional regurgitation and dumping syndrome. The Veteran’s treating oncologist has indicated that these residuals resulted in loss of muscle mass and fatigue. As noted above, a higher 60 percent rating under Diagnostic Code 7346 requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. However, as described above, the evidence does not show that the Veteran’s residuals of esophageal cancer have resulted in material weight loss, vomiting, hematemesis, or melena with moderate anemia. Instead, the Veteran is noted to have persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, and mild nausea lasting less than one day with 4 or more episodes per year. Such symptoms more nearly approximate a 30 percent rating under Diagnostic Code 7346. However, there are diseases of the digestive system, which, while differing in the site of pathology, produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. It is important to note also that certain coexisting diseases in this area 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. 38 C.F.R. § 4.113. In this regard, 38 C.F.R. § 4.114 indicates that ratings under Diagnostic Codes 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 that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. Accordingly, given the symptomatology documented in the claims file, specifically dumping syndrome which is not contemplated by Diagnostic Code 7346, the Board reviewed additional relevant Diagnostic Codes pertinent to diseases of the digestive system to ascertain if a higher rating was available to the Veteran. Under Diagnostic Code 7348 for vagotomy with pyloroplasty or gastroenterostomy, a 20 percent rating is assigned for recurrent ulcer with incomplete vagotomy, a 30 percent rating is assigned for symptoms and confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea, and a 40 percent rating is assigned when the surgical intervention is followed by demonstrably confirmative postoperative complications of stricture or continuing gastric retention. Significantly, this Diagnostic Code also provides that a recurrent ulcer following complete vagotomy is to be rated under Diagnostic Code 7305 and that dumping syndrome should be rated under Diagnostic Code 7308. There is no evidence that the Veteran suffers from a recurrent ulcer, so Diagnostic Code 7305 does not apply. However, Diagnostic Code 7308 which refers to postgastrectomy syndromes contemplates dumping syndrome as identified by the Veteran’s claims file. Under Diagnostic Code 7308, a 60 percent rating, the maximum rating provided for under that code, is warranted for severe symptoms associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. A 40 percent rating is warranted for moderate symptoms with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, but with diarrhea and weight loss. 38 C.F.R. § 4.114, DC 7308. The words “slight,” “moderate,” “moderately severe,” “marked, and “severe” are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After a careful and thorough review of the pertinent medical and lay evidence, the Board finds that the Veteran’s symptoms of the residuals of his esophageal cancer most nearly approximate the rating criteria for a 40 percent evaluation under Diagnostic Code 7308 and has thus recharacterized the residuals of his esophageal cancer with dumping syndrome as such. Overall throughout the period on appeal, the Veteran exhibited moderate recurrent epigastric distress with mild circulatory symptoms including dysphagia, pyrosis, and regurgitation, with diarrhea and weight loss. The Board finds that a still higher, 60 percent rating under Diagnostic Code 7308 is not warranted because the Veteran’s symptoms were not severe enough to cause weight loss with malnutrition and anemia. (Continued on the next page) In summary, a rating of 40 percent recharacterized under Diagnostic Code 7308, but no higher, for the residuals of esophageal cancer with dumping syndrome is warranted from the date of the claim for increase. In reaching this decision, the Board has applied the benefit of the doubt doctrine as is required by law. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.