Citation Nr: 21064141 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-44 315 DATE: October 19, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for postgastrectomy syndrome is denied. Entitlement to a disability rating in excess of 20 percent for thoracic spine strain (low back condition) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's service-connected postgastrectomy is productive of moderate, but not severe symptoms; his disability is not productive of severe symptoms such as sweating, weight loss with malnutrition and anemia. 2. For the period from September 19, 2013, the Veteran's low back disability was manifested by pain and limitation of motion, without limitation of forward flexion to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes. There are no associated neurological symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for postgastrectomy syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7308. 2. The criteria for entitlement to a disability rating in excess of 20 percent for thoracic spine strain (low back condition) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from August 1986 to February 1987, and from March 2004 to June 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2014 and November 2014 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary matter, the record reflects that the Veteran is also claiming that he is unable to work, in part, due to his service-connected postgastrectomy syndrome/ abdominal pain/ distal partial gastrectomy with rouxeny, gastrojejunostomy, cholecystectomy with intubation of CBD due to gastric outlet obstruction. Therefore, the Board finds that question of entitlement to a TDIU has been raised as part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has jurisdiction over the issue. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. 1. Entitlement to a disability rating in excess of 40 percent for postgastrectomy syndrome is denied. The Veteran was granted service connection for his postgastrectomy in November 2014 and assigned an effective date of April 14, 2014. The Veteran was assigned a 20 percent disability rating. Thereafter, in December 2014 the Veteran filed a notice of disagreement (NOD) with his assigned disability for his postgastrectomy and appealed this matter to the Board. During the pendency of the appeal, the Veteran was granted an increased rating of 40 percent in an August 2017 rating decision. As this rating does not reflect the full grant of the benefit sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Under DC 7308, for postgastrectomy syndrome, a 40 percent evaluation is warranted for moderate impairment characterized by less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent evaluation is warranted for severe impairment, associated with nausea, sweating, and circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114. Turning to the evidence of record, private treatment records from March 2014 reflect that the Veteran reported losing 20 pounds over the last month, and experiencing significant abdominal pain, nausea, and vomiting. VA treatment records reflect that the Veteran complained of persistent diarrhea that had been ongoing "for many months" in 2015. See e.g., November 23, 2015 VA primary care note. In 2016, the Veteran was diagnosed with a gastrocolic fistula and underwent a colonoscopy for treatment. The Veteran underwent a stomach and duodenal conditions VA examination in August 2017. The Veteran's service-connected condition was characterized as gastrectomy syndrome with abdominal pain and distal partial gastrectomy with roux en Y/gastrojejunostomy, cholecystectomy with intubation of CBD due to gastric outlet obstruction secondary to chronic duodenal ulcer with subsequent laparotomy and hemicolectomy plus small bowel resection due to gastrocolic and jejunal fistula with multiple adhesions. The Veteran indicated that such surgeries were performed in 2014 and reported that since that time he had to undergo revisions due to development of fistula. Since the revision, the Veteran reports tightness in the abdomen, continually loose stools, and has to eat several small meals daily with dietary restrictions. The Veteran also endorsed some heart burn accompanied by nausea. The Veteran stated that his abdominal pain was intermittent, but at least monthly, and can sometimes be so severe that it leads to vomiting. The VA examiner indicated that the Veteran's primary symptoms of his post gastrectomy syndrome included monthly, pronounced abdominal pain, recurrent nausea, recurrent vomiting. The VA examiner indicated that the Veteran did not experience incapacitating episodes due to his symptoms. The VA examiner noted that the Veteran's postgastrectomy syndrome was moderate in severity. VA treatment records following the August 2017 VA examination reflect persistent complaints and treatment for chronic diarrhea. The Veteran underwent an additional VA examination in August 2020. During the examination, the VA examiner indicated that the Veteran's symptoms included abdominal pain, occurring at least monthly, recurrent nausea, and recurrent vomiting. The Veteran did not endorse, and the VA examiner did not observe that the Veteran suffered from anemia, weight loss, hematemesis, or melena. The Veteran reported incapacitating episodes due to his symptoms, indicating that he has "frequent episodes of diarrhea, bloating, nausea, and abdominal pain." The VA examiner characterized the Veteran's postgastrectomy syndrome as mild. Further, the VA examiner related that the Veteran's stomach condition impacts his ability to work. The Veteran reported that his constant diarrhea impairs his ability to lead a normal life and hinders his work ability as he needs to always be close to a restroom, and often times cannot properly focus on his work to perform his job. In summary, the evidence of record reflects that for the period on appeal, the Veteran has had episodes of moderate severity related to his service-connected postgastrectomy. At both his August 2017 and August 2020 VA examinations the Veteran reported pronounced abdominal pain, recurrent nausea, recurrent vomiting and diarrhea. Furthermore, the Veteran stated at his August 2020 VA examination that he has incapacitating episodes due to his symptoms. However, the Veteran did not report, and the medical evidence of record does not reflect, symptoms indicating heightened severity warranting a 60 percent rating for his service-connected disability, specifically including sweating, circulatory disturbance after meals, hypoglycemic symptoms, malnutrition and anemia. Both VA examiners of record found that the Veteran was not anemic. Although weight loss was noted during the appeal period, malnutrition was not assessed. As such, the Veteran's post gastrectomy syndrome does not more nearly approximate the criteria for a 60 percent rating for the period on appeal. Accordingly, a disability rating in excess of 40 percent for the post gastrectomy syndrome disability is denied. 2. Entitlement to a disability rating in excess of 20 percent for thoracic spine strain (low back condition) is denied. The Veteran filed a claim for an increased rating for his service-connected low back condition in September 2013, contending he is entitled to a disability rating in excess of 20 percent as his disability has progressed. The Veteran's low back disability is rated under DC 5237. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. There are several notes relevant to the rating criteria. 38 C.F.R. § 4.71a. Those pertinent to this appeal are included here. Note (1): Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate DC. Note (2): Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned. When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, DC 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. As of February 7, 2021, under the amended criteria, DC 5243, intervertebral disc syndrome, is assigned "only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Turning to the evidence of record, the Veteran underwent a thoracolumbar spine VA examination in March 2014. The VA examiner diagnosed the Veteran with degenerative arthritis of the spine, as well as thoracic spine strain with protrusions. The Veteran reported that his back condition has become worse, indicating that the pain keeps him up at night and he is unable to work the next day. The Veteran described the pain as "sharp" and radiating. The Veteran stated that physical therapy has not helped to relieve his low back pain. The Veteran reported that he was in a bowling league but had to stop due to his low back disability. Additionally, the Veteran reported that he must sleep on the floor because he is unable to sleep in his bed. He reported that he is unable to do work around the house or yard work, and cannot walk the dog due to the severity of the pain. The Veteran endorsed flare-ups of his low back condition, describing them as "excruciating" with a pain level of 8 to 10 out of 10. He reports experiencing flare-ups approximately 4 to 5 times per week and indicated that they last anywhere from 20 minutes to 8 hours. The Veteran stated during flare-ups he is able to stand for 10 to 15 minutes and able to sit for 20 to 30 minutes. Range of motion testing performed during this examination was invalid for rating purposes as the Veteran did not perform most ranges due to recovery from his abdominal surgery related to his postgastrectomy syndrome. The VA examiner stated that the Veteran had no ankylosis of the spine. Regarding functional impact, the Veteran reported that he missed 20 days of work in the past 12 months as a result of his service-connected back condition. The Veteran indicated that his output of work has decreased, and that he is now unable to do certain types of tasks that include lifting or bending due to increased pain in his back. The Veteran reported that he needs assistance with some of these tasks now. The Veteran underwent a VA examination in February 2015. During the examination, the Veteran reported constant pain in the thoracic spine, primarily in his mid-back. The pain was described as a "grinding, squeezing" type of pain at a level of 7-10 out of 10. The Veteran reported experiencing flare-ups of his spine disability approximately three to four times per day. The flare-ups will last for approximately five to fifteen minutes and often have an unknown etiology. The Veteran reported that recently, his lumbar spine had begun to "act up" even when sitting a lot. The Veteran reported that he has begun having more trouble getting his shoes on and sometimes getting his pants on. He reported that he no longer exercises as exercising would cause a flare-up. The Veteran reported that he can no longer perform the lifting, standing, or kneeling required by his job due to his severe back pain and that he must take frequent breaks. Range of motion testing reflected the Veteran's forward flexion measured to 60 degrees and extension measured to 20 degrees. The VA examiner noted all ranges of motion exhibited pain. The VA examiner noted no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing and there was no additional loss of range of motion following the repetitions. The VA examiner denied ankylosis of the spine and other neurologic abnormalities. The Veteran underwent an additional VA examination for his low back in August 2020. The August 2020 VA examiner indicated that in addition to the Veteran's previous diagnoses, he also exhibited spinal stenosis and intervertebral disc syndrome (IVDS). During the examination, the Veteran reported that he can no longer perform lifting or standing for a prolonged period of time. The Veteran indicated he currently uses pain medication and physical therapy for management and treatment of his disability. Regarding flare-ups, the Veteran reported that during colder weather, his low back pain is worse. Upon range of motion testing, the Veteran's forward flexion was 70 degrees and extension measured at 20 degrees. The VA examiner noted that the range of motion itself contributed to a functional loss because the Veteran's reduced range of motion of the spine makes it difficult for the Veteran to bend forward to lift and harder for him to "straighten up" in the mornings. Pain was noted on all range of motion and there was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of range of motion. The VA examiner also noted no additional loss of range of motion during flare-ups. The VA examiner indicated no ankylosis of the spine and no neurologic abnormalities. While the VA examiner noted that the Veteran does have IVDS of the lumbar spine, there have been no episodes of acute symptoms due to IVDS that required bed rest prescribed by a physician in the last 12 months. Based on the evidence discussed above, the Board finds that an increased disability rating in excess of 20 percent is not warranted for the Veteran's lumbar spine disability. There is no lay or medical evidence indicating that the Veteran was limited to 30 degrees or less of forward flexion of the thoracolumbar spine. Additionally, there is no evidence indicating favorable ankylosis of the entire thoracolumbar spine. The probative medical evidence of record indicates that the Veteran had range of motion, albeit limited, in all directions. As such, the preponderance of the evidence is against a finding that the Veteran's overall disability picture during this period more nearly approximated that contemplated by a 40 percent rating, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.7, 4.71a, DC 5237. In determining the level of disability during this period, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The Board notes that the Veteran has reported experiencing flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. However, there is no indication that any flare-ups or repeated use over time for the lumbar spine disability resulted in any additional loss of motion over that already noted above, as both the February 2015 and August 2020 VA examiners denied additional functional loss during such. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In particular, the examiners attempted to elicit information from the Veteran in this regard, and he stated only that he has pain with movement, lifting, bending, walking, and standing. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the Veteran's reports of exacerbation or flare-ups for his low back disability are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Furthermore, the lack of an opinion without speculation to estimate any additional range of motion loss during flare-ups or after repeated use due to not observing the disabilities during increased pain, as noted in Sharp, is not prejudicial. Therefore, no further examination or medical opinion is necessary. In addition, consideration has been given as to whether a higher disability rating could be assigned under the General Rating Formula for IVDS Based on Incapacitating Episodes. Here, the Board finds that a higher rating is not appropriate under either the old or revised rating criteria. While as of the August 2020 VA examination the Veteran does have a diagnosis of IVDS, there is no indication in any of the Veteran's records that he was prescribed bedrest by a physician at any time during the appeal period. Thus, the Board finds that a higher disability rating under the General Rating Formula for IVDS Based on Incapacitating Episodes is not appropriate under either the old or new rating criteria. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, no other neurologic abnormalities have been noted as being associated with the Veteran's low back disability. The preponderance of the evidence is against a rating in excess of 20 percent as there is no indication that there has been forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine during that period. 38 C.F.R. § 4.71a, DC 5237. As such, the Veteran's claim is denied. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities is remanded. In September 2015 correspondence, the Veteran reported that he was experiencing such severe symptoms of his service-connected disabilities that they had begun affecting his work performance. Specifically, the Veteran stated that his low back disability prevented him from "stand[ing] in one place for more than five minutes without getting bad back and abdominal pain. Being bent over for an extended period of time causes pain and lifting anything over 50 pounds. I have to take breaks and even lay on the ground during work just to get through the workday. Even when I sit, I need a chair with back support. Driving vehicles with stiff suspensions also hurts me. All of this is a problem, because I work on cars and trucks for a living, and I am worried about losing my job because I can't do my job description as posted." Therefore, entitlement to a TDIU has been reasonably raised by the record in the context of the Veteran's increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Given that there is no development regarding the Veteran's level of education and prior work history, a remand is necessary to develop this information and adjudicate the issue of entitlement to a TDIU. The matters are REMANDED for the following action: Provide the Veteran with notice regarding the information necessary to substantiate his claim for a TDIU as well as a VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability, for completion, and undertake any necessary development in order to adjudicate the issue of TDIU in a supplemental statement of the case. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, Associate 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.