Citation Nr: A21019367 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 200319-75983 DATE: December 6, 2021 ORDER Entitlement to an evaluation in excess of 60 percent for service-connected postgastrectomy syndrome, claimed as duodenal ulcer, is denied. Entitlement to a compensable evaluation for service-connected lower abdomen scar is denied. Entitlement to an effective date of December 10, 2018, for the grant of service connection for a lower abdomen scar is granted. Entitlement to a total disability rating due to individual unemployability is denied. FINDINGS OF FACT 1. The Veteran's service-connected postgastrectomy syndromes, is assigned the maximum rating available. 2. The Veteran's service-connected abdomen scar is stable, unpainful, and measures less than 39 square centimeters. 3. The Veteran's abdomen scar was present at the time VA received the claim for a TDIU on December 10, 2018, which initiated a reevaluation of the severity of the Veteran's service-connected disabilities. 4. The Veteran's service-connected disabilities have not rendered the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 60 percent for service-connected postgastrectomy syndromes, claimed as duodenal ulcer, have not been met. 38 U.S.C. § 1155 ;38 C.F.R. § 4.116, Diagnostic Code 7308. 2. The criteria for a compensable evaluation for service-connected lower abdomen scar have not been met. 38 U.S.C. § 1155 ;38 C.F.R. § 4.116, Diagnostic Code 7802. 3. The criteria for an effective date of December 10, 2018, for the grant of service-connection for a lower abdomen scar have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400 4.119, Diagnostic Code 7802. 4. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Of relevance to this appeal, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, also known as the Appeals Modernization Act (AMA). The implementation date for AMA was February 19, 2019. Under the AMA, an appeal can be perfected by submitting a Notice of Disagreement (NOD) using the appropriate form, VA Form 10182, directly to the Board of Veteran's Appeals (Board), and identifying the underlying unfavorable decision and issues with which the Veteran disagrees. The Veteran served on active duty in the United States Marine Corps from June 1966 to June 1968. This matter comes before the Board from a March 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) adjudicated under the AMA. The Veteran perfected a timely appeal to the Board in a March 2020 VA Form 10182 and requested the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. As an initial matter, the Board observes that in March 2020, the Veteran's representative filed an extension request to submit additional evidence until after fulfillment of a co-filed Freedom of Information Act (FOIA) request. Typically, under the Legacy appeals, the Veteran is entitled to a response for a request for extension, and a failure to respond would toll the appeal period. However, the laws under AMA for the evidence submission lane are different, in that it does not permit an extension to submit additional evidence outside of the evidentiary period, as the Board is limited to review of evidence considered by the agency of original jurisdiction, and any evidence submitted with the Form 10182 and/or within 90 days following receipt of the Form 10182. Therefore, while, at the very least, the appeal period may have remained open due to VA's failure to respond to the March 2020 extension request, this open period did not continue past the appeal period related to the law under AMA Evidence submission; and thus, the Veteran's entitlement to an actual response to his extension request would have no effect whatsoever on the claim at hand (as whether the VA gave a response or not, the time period to submit additional evidence would have expired on June 16, 2020 regardless). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). 1. Entitlement to an evaluation in excess of 60 percent for service-connected postgastrectomy syndrome, claimed as duodenal ulcer, The Veteran is seeking an evaluation in excess of 60 percent for his service connected postgastrectomy syndrome. The Veteran's postgastrectomy syndrome is presently rated under DC 7308, which evaluates postgastrectomy syndromes. A 20 percent rating is warranted for mild symptoms, characterized by infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A 40 percent evaluation is warranted for moderate symptoms 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 symptoms, associated with nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. § 4.114. In support of his claim, the Veteran submitted a lay statement in January 2019. The Veteran asserted that he experiences "dizziness, wooziness, nausea, and headaches" which he believes are related to his service-connected post-gastrectomy syndrome. A review of private treatment records shows that the Veteran was taken to the emergency room due to dizziness while working in April 2017. VA treatment records reveal that the Veteran received treatment and a consultation from a neurologist for dizziness in October 2018. However, additional complaints of symptoms related to his service-connected post-gastrectomy syndrome are absent from both the private and VA treatment records contained within the evidence of record. In January 2019, the Veteran received a VA examination regarding the severity of his service-connected post-gastrectomy syndrome. The examiner observed that the Veteran experiences moderate, less frequent episodes of epigastric disorder with characteristic mild circulatory symptoms. It was noted that the Veteran restricts water, coffee, and soda intake, must wait a half hour after eating before drinking fluids, and utilizes gas tablets, tums, and herbal tea to treat symptoms. The Veteran reported that he experiences dehydration due to being unable to drink water at times because he believes it causes him to experience diarrhea. It was reported that the Veteran experiences 4 or more recurring episodes of non-severe symptoms which last less than one day, periodic abdominal pain which is partially relieved by standard ulcer therapy, mild nausea occurring four or more times per year lasting less than one day. The Veteran reported experiencing no incapacitating episodes. The Board finds that the Veteran's post-gastrectomy syndrome has been appropriately evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7308. As noted above, under DC 7308, the maximum available evaluation is 60 percent. A 60 percent evaluation is warranted for severe symptoms, associated with nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. The Veteran has not alleged the existence of any symptoms not contemplated by the current rating. Additionally, the record does not suggest the application of any alternate diagnostic codes under which the Veteran's post-gastrectomy syndrome could be rated. Accordingly, an evaluation in excess of 60 percent for post-gastrectomy syndrome is not warranted. 2. Entitlement to a compensable evaluation for service-connected lower abdomen scar The Veteran asserts that he is entitled to a compensable rating his service-connected residual abdomen scar, presently rated under Diagnostic Code 7802. Under the criteria for rating skin disabilities, scars, other than on the head, face, or neck, that are deep and nonlinear warrant a 10 percent rating if the area or areas affected are at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars, other than on the head, face, or neck, that are superficial and nonlinear warrant a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent rating may also be assigned for one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. All other noncompensable linear scars are to be evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7805. In a January 2019 VA examination, the Veteran was noted to have a linear scar which resulted from the Veteran's gastrectomy that measured 20 centimeters by 0.5 centimeters, which was not painful or unstable. The Board finds that the Veteran's gastrectomy scar does not meet the criteria for a compensable rating for service-connected scars, other than on the head, face, or neck, as it does not demonstrate any of the following: (1) deep and nonlinear scar, if the area or areas affected are at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) (Diagnostic Code 7801); (2) superficial and nonlinear scars for area or areas of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); (3) one or two scars that are unstable or painful (Diagnostic Code 7804). As noted above, the Veteran has a single scar that is stable, nonpainful, and measures less than 39 sq. cm. The record does not contain any evidence to suggest that the Veteran's gastrectomy scar warrants a compensable rating. Accordingly, the claim is denied. 3. Entitlement to an effective date of December 10, 2018, for service-connected abdomen scar The Veteran contends that he is entitled to an effective date prior to January 21, 2019, for his service-connected abdomen scar. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). On December 10, 2018, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Subsequently, the RO began evaluating the Veteran's presently service-connected disabilities to determine whether a total disability rating due to individual unemployability (TDIU) was warranted. Through these evaluations, the RO determined that the Veteran was entitled to service connection for an abdomen scar associated with his gastrectomy. The record does not contain any evidence that the Veteran initiated a claim for service connection for an abdominal scar associated with a gastrectomy procedure. It appears that the RO determined that the appropriate effective date for the Veteran's abdomen scar is that of the VA examination which was obtained in connection with the Veteran's TDIU claim. The Board disagrees. As the claim which initiated the Veteran's evaluation was received on December 10, 2018, and the medical evidence of record confirms the presence of the applicable scar at the time of claim, the appropriate effective date for the Veteran's service-connected abdomen scar is December 10, 2018, the date the claim was received by VA. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Accordingly, the Board finds that the appropriate effective date for service connection is December 10, 2018. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16 (b). As an initial matter, the Board notes that the Veteran is has a present disability rating of 60 percent. The Veteran is service connected for the following conditions: post-gastrectomy syndrome evaluated at 100 percent from March 16, 1973, and 60 percent from July 1, 1973; hemorrhoids evaluated as noncompensable from March 26, 1973; and a lower abdomen scar evaluated as noncompensable from December 10, 2018. In the December 2018 VA form 8940 and associated statement in support of claim, the Veteran reported being unable to work due to experiencing a stroke in July 2015 which resulted in partial paralysis and ambulation issues. The Veteran also stated that his service-connected gastro-intestinal issues "prevent any substantial gainful employment" due to incontinence. Additionally, in a January 2019 statement in support of claim, the Veteran asserted that he experiences dizziness, nausea, and headaches associated with his service-connected post-gastrectomy syndrome. As discussed above, the Veteran was provided a VA examination in January 2019, wherein the examiner found that the Veteran's service-connected disabilities resulted in functional impairment described as being unable to drink fluid while working because drinking resulted in "dumping syndrome and abdominal discomfort." Additionally, the Veteran would often miss meals while working to prevent symptoms. As discussed above, the examiner observed that the Veteran experiences moderate, less frequent episodes of epigastric disorder with characteristic mild circulatory symptoms. It was reported that the Veteran experiences 4 or more recurring episodes of non-severe symptoms which last less than one day, periodic abdominal pain which is partially relieved by standard ulcer therapy, mild nausea occurring four or more times per year lasting less than one day, and dehydration as a result of avoiding drinking fluids. The Veteran reported experiencing no incapacitating episodes. The Board observes that the Veteran's reported symptoms which resulted from his July 2015 stroke may not be considered in determining entitlement to a TDIU, as the Veteran is not service connected for that condition. The Board may only consider the impact of those symptoms which are associated with service-connected disabilities. Of the Veteran's service-connected disabilities, the Veteran reported that he did not experience incapacitating episodes associated with his post-gastrectomy syndrome, and that he had four or more recurring episodes of non-severe symptoms, including abdominal pain and mild nausea, which lasted less than a day. The Board finds the probative evidence of record does not suggest that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment at any time during the period of the appeal. There is no finding of unemployability, the Veteran has reported that his unemployability is due in part to non-service connected disabilities, and the record does not support a finding of unemployability due to the Veteran's service-connected disabilities. In sum, the Board finds the weight of competent and probative evidence is against a finding of entitlement to a TDIU. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.