Citation Nr: 21063929 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-24 314 DATE: October 18, 2021 REMANDED Entitlement to a disability rating in excess of 60 percent for gastric cancer status post resection (80%) stomach, to include on an extraschedular basis, is remanded. Entitlement to an initial compensable disability rating for scar, residuals of resection, abdomen, associated with gastric cancer status post resection, is remanded. REASONS FOR REMAND These matters come to the Board of Veterans' Appeals (Board) from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied a disability rating in excess of 40 percent for gastric cancer status post resection (80%) stomach, and granted service connection for scar, residuals of resection, abdomen, assigning a 0 percent rating, effective April 13, 2015. In October 2015, the Veteran filed a notice of disagreement with the disability ratings assigned. In a May 2015 rating decision, a 60 percent disability rating was assigned to gastric cancer status post resection (80%) stomach, effective April 13, 2015. A statement of the case was issued in March 2018 and a substantive appeal was received in April 2018. The Veteran testified at a Board hearing in July 2021; the transcript is of record. Gastric cancer status post resection (80%) stomach The Veteran's gastric cancer status post resection (80%) stomach is rated 60 percent disabling per 38 C.F.R. § 4.114, Diagnostic Code 7308, which is the maximum assignable schedular disability rating and which contemplates severe postgastrectomy syndrome associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Compensation ratings are based upon the average impairment of earning capacity. To accord justice in the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). In other words, by regulation, an extraschedular rating may be considered when a case presents "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). Per § 3.321(b)(1), before a finding may be made that entitlement to submission of the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration is warranted, there must be a showing of marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Veteran asserts that his service-connected gastric cancer status post resection (80%) stomach results in marked interference with employment to render impractical the application of the regular schedular standards and an extraschedular rating should be considered pursuant to 38 C.F.R. § 3.321(b)(1). Specifically, he testified that he has "constant problems with my bowels. I have to take two stool softeners at least four times a day, in the morning and the evening. My bowels alternate between being almost regular and diarrhea. I had to have four hemorrhoid surgeries due to the fact that I have had to go to the bathroom at least 15 times a day with stool. I have a little incontinency in my urine and my bowels at times. At times, sometimes I feel as though I need to put on a Depends because my bodily fluids don't function as they used to." 07/27/2021 Hearing Transcript at 3. The Board notes that service connection is in effect for hemorrhoids (10% 04/13/2015). He testified that he leaks urine and has to take erectile dysfunction medication. Id. at 4. He also testified as to a loss of strength, weakness, weight loss, and a restrictive diet. Id. at 5-7. Based on the Veteran's assertions of the symptomatology associated with his gastric cancer status post resection (80%) stomach, there is plausible evidence that the regular schedular criteria is inadequate to evaluate the Veteran's disability. The Veteran should be afforded an examination to assess the severity of his gastric cancer status post resection (80%) stomach and associated symptomatology. Thereafter, the claim must be submitted to VA's Director, Compensation and Pensions Service for extraschedular consideration per § 3.321(b)(1). See Bowling v. Principi, 15 Vet. App. 1 (2001). Scar, residuals of resection, abdomen, associated with gastric cancer status post resection The Veteran testified that his scar is painful, and it feels like the tissue is pulling and tearing. 07/27/2021 Hearing Transcript at 11. He testified that he is constantly rubbing the scar and it feels like an "irritant." Id. at 12. The Veteran should be afforded an examination to assess the severity of his scar. The Veteran testified that he undergoes all of his medical treatment at a VA Medical Center (VAMC). Associate updated VA treatment records for the period from May 13, 2017. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from May 13, 2017. 2. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the severity of his service-connected gastric cancer status post resection (80%) stomach. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings should be reported in detail. Please ask the VA examiner to carefully review the July 2021 Board hearing transcript and to clarify which symptoms described by the Veteran at the hearing are attributable to his gastric cancer status post resection (80%) stomach, such as his reported: urine incontinency, diarrhea, weight loss, weakness, loss of strength, and erectile dysfunction. The examiner should address the effect of the Veteran's gastric cancer status post resection (80%) stomach on his occupational functioning. 3. Schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the severity of his service-connected scar, residuals of resection, abdomen. All pertinent symptomatology and findings should be reported in detail. The examiner should determine the level of disfigurement of the scar. The examiner should specifically comment on each of the eight disfiguring factors under Diagnostic Code 7800 for the scar: (1) scar five or more inches in length; (2) scar at least one-quarter inch wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The examiner should also comment on whether the scar is painful or unstable. The examiner should also comment on any residual abdomen symptomatology due to the scar. (Continued on the next page) 4. Based on the findings in the examination report, the Veteran's claim for an extraschedular rating per § 3.321(b)(1) should be submitted to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for extraschedular consideration as to whether his service-connected gastric cancer status post resection (80%) stomach, rated 60 percent disabling, effective April 13, 2015, manifests in marked interference with employment as to render impractical the application of the regular schedular standards. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, Counsel 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.