Citation Nr: 21005904 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-07 136 DATE: February 2, 2021 ORDER Entitlement to a disability rating of 60 percent prior to November 7, 2013, for recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy is granted. Entitlement to a total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 7, 2013, the Veteran’s for recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy, is manifested by severe postgastrectomy syndrome. 2. The Veteran’s service-connected disabilities have not been shown to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent prior to November 7, 2013, for recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7308. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1965 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2018. A transcript is of record. The appeal was remanded for further development in March 2019. 1. Entitlement to a disability rating of 60 percent prior to November 7, 2013, for recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy The Veteran seeks a higher disability rating for recurrent pyloric channel ulcer. The Veteran filed a claim for an increased rating in August 2012. A November 2012 rating decision increased the rating to 40 percent, effective August 14, 2012 under 38 C.F.R. § 4.114, Diagnostic Code 7308. Subsequently, in a July 2020 rating decision, the RO increased the rating to 60 percent, effective November 7, 2013. This is the maximum rating available under Diagnostic Code 7308. Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of the two disability evaluations is 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. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s recurrent pyloric channel ulcer, and postoperative vagotomy, is rated under Diagnostic Code 7308. Diagnostic Code 7308 is used to rate postgastrectomy syndromes. Under Diagnostic Code 7308, a 20 percent rating is warranted for mild postgastrectomy syndrome with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. A 40 percent rating is warranted for moderate postgastrectomy syndrome with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating is assigned for severe postgastrectomy syndrome associated with 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 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. VA treatment records reveal ongoing gastrointestinal complaints. In August 2012, the Veteran reported worsening abdominal cramps, and gas pain over the past year. He reported a history of gastric and colon resection. The Veteran was afforded a VA examination in October 2012. The Veteran reported that “food is just running through me.” He stated that the problem started a few years before off and on. He also reported intermittent abdominal pain with chronic diarrhea. He indicated that his appetite was normal, and his weight was stable. The examiner did not indicate the presence of recurring episodes of symptoms that were severe. The examiner did note recurring episodes of symptoms that were not severe. These included periodic abdominal pain that occurred at least monthly, 3 incapacitating episodes per year that lasted between 1 to 9 days, and moderate postgastrectomy syndrome and vagotomy with pyloroplasty or gastroenterostomy with symptoms and confirmed diagnosis of alkaline gastritis or confirmed persisting diarrhea. Symptoms of nausea, weight loss, and vomiting were not indicated. A diagnosis of alkaline gastritis, or of confirmed persisting diarrhea, was noted by the examiner. No diagnostic imaging tests, including upper endoscopy was performed. The examiner opined that the overall severity of the gastrointestinal condition was ‘moderate.’ The Veteran underwent a private consultation in January 2013. The Veteran reported persistent abdominal pain with no associated changes in bowel habits. The physician noted a medical history of extensive surgical intervention with removal of more than 50 percent of the small bowel. He assessed a history of polyps, left lower quadrant abdominal pain, and altered bowel habit with possible dumping syndrome and short bowel syndrome. The physician also conducted an EGD with biopsy based on the Veteran’s history of unexplained weight loss, nausea and vomiting. A diagnosis of gastritis was confirmed by the EGD. The Veteran was afforded a VA examination in November 2013. The examiner noted that the Veteran had a pyloric channel ulcer with gastroduodenitis and status post vagotomy and antrectomy. He had a residual dumping syndrome. The examiner noted recurring episodes of severe symptoms 4 or more times per year that lasted 1 to 9 days. He noted symptoms of periodic abdominal pain that occurs at least monthly, recurrent nausea, and incapacitating episodes due to signs or symptoms of stomach or duodenum conditions. The examiner assessed moderate postgastrectomy syndrome and vagotomy with pyloroplasty or gastroenterostomy with signs and confirmed diagnosis of alkaline gastritis or confirmed persistent diarrhea. Based on the evidence of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that a higher 60 percent rating prior to November 7, 2013 is warranted for the Veteran’s gastrointestinal disability pursuant to Diagnostic Code 7308. Specifically, the Board finds that during this period, symptoms such as recurring periodic abdominal pain and severe incapacitating episodes were demonstrated. The October 2012 VA examination report and November 2013 VA examination report contained very similar clinical findings. Both VA examinations noted periodic abdominal pain that occurred at least monthly, recurring incapacitating episodes of severe gastrointestinal symptoms that lasted between 1 to 9 days, and moderate postgastrectomy syndrome. While the October 2012 VA examination found one less episode of severe gastrointestinal symptoms per year, the two VA examination reports reveal similar clinical pictures between October 2012 and November 2013. The Board finds that severe symptoms such as recurring dumping syndrome, recurring episodes of incapacitating gastrointestinal symptoms, and abdominal pain are demonstrated. The October 2012 VA examination as well as VA and private treatment records demonstrated severe recurrent gastrointestinal symptoms. Based on a holistic analysis that considers all associated symptoms, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s gastrointestinal symptoms more nearly approximate a 60 percent rating prior November 7, 2013. This is in consideration of his symptoms which primarily consist of recurrent incapacitating episodes of severe gastrointestinal symptoms that last up to 9 days. In sum, a 60 percent rating is warranted for the service-connected pyloric ulcer prior to November 7, 2013. A 60 percent is the maximum schedular evaluation available for this gastrointestinal disability. The Veteran is already receipt of the maximum schedular evaluation for his gastrointestinal disability for the period after November 7, 2013; hence, no further consideration is required. 2. Entitlement to a TDIU The Veteran asserts that he can no longer work due to his service-connected disabilities. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disability provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held the phrase “substantially gainful employment” has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). “The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” Id. The noneconomic component goes to the veteran’s individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy); and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Veteran is currently service-connected for: recurrent pyloric channel ulcer with recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy and antrectomy with billroth I anastomosis (rated 60 percent from August 14, 2012); depressive disorder associated with recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy and antrectomy with billroth I anastomosis (rated 70 percent from February 25, 2013); bilateral hearing loss (rated noncompensable from February 25, 2013, and 40 percent from December 19, 2017); tinnitus (rated 10 percent from February 25, 2013); and painful abdominal scar associated with recurrent pyloric channel ulcer with gastro-duodenitis, postoperative vagotomy and antrectomy with billroth I anastomosis (rated noncompensable from August 14, 2012, and 10 percent from March 6, 2018). The Veteran’s combined disability rating is 60 percent from August 14, 2012, 90 percent from February 25, 2013, and 100 percent from March 6, 2018. Thus, the Veteran meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). The Board initially notes that the Veteran has not submitted a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based Upon Individual Unemployability. At his October 2018 hearing before the undersigned, the Veteran and his wife indicated that he retired in 2010. The Veteran reported that his employer did not want to fire him but he was “taking up too much in the toilet and stuff” and also vomiting. Pursuant to Board’s March 2019 Remand directives, the Veteran was sent a letter in October 2019 that informed him of the evidence required to support a claim for TDIU, and requested that he complete and return VA Form 21-8940 in order to provide information about his employment and educational history. In October 2019, the Veteran submitted a brief statement in support of his claim in which he indicated that he stopped working around 2010, and that he had worked in construction. However, VA has not received a completed VA Form 21-8940 to date. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran’s employment history, educational history, and income information necessary to properly address a claim for TDIU. The Veteran has failed to cooperate with VA’s attempts to develop the claim for TDIU. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board must therefore attempt to glean relevant information about his employment history during the period on appeal, to include income he earned or from any such employment, the number of hours worked and any special circumstances (i.e. protected environment such as a family business or sheltered workshop) from the available evidentiary record. Turning to the evidence of record, the Veteran filed a supplemental claim for a higher rating in August 2012. The Veteran filed for Social Security Administration (SSA) disability benefits. A February 2013 physical residual functional capacity assessment by an SSA physician reflects that the Veteran had the residual capacity to lift 50 pounds occasionally and 25 pounds frequently, stand or walk about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and frequently climb stairs, stoop, kneel, crouch, and occasionally crawl. While SSA physicians noted a history of major depressive disorder, the SSA physicians found that there was no evidence of severe mental impairment limiting the Veteran’s functioning at the time of the SSA application. The Veteran was afforded a VA examination for stomach conditions in October 2012. The examiner found that the Veteran’s stomach condition may cause increased absenteeism from work due to intermittent exacerbation of chronic symptoms. The Veteran was afforded a VA examination for stomach and duodenal conditions in November 2013. The examiner found that the Veteran experienced 4 or more recurring episodes of severe symptoms that last 1 to 9 days. The examiner noted abdominal pain that occurs at least monthly, is periodic, and only partially relieved by standard ulcer therapy. The examiner also found that the Veteran experienced incapacitating episodes where he must stay at home due to signs or symptoms of his stomach or duodenum condition. However, the examiner did not find the stomach or duodenum conditions impacted the Veteran’s functional ability to work. The Veteran was afforded a VA examination for hearing loss in December 2013. The examiner found that the Veteran’s hearing loss impacted his ability to work. The Veteran described trouble hearing his wife and the TV at home, and difficulty understanding all the words in situations where there are many people talking at once. In a September 2014 statement, the Veteran reported that he had to retire because he was spending too much time in the bathroom and was unable to keep up with work. He reported that he had constant flushing and diarrhea. He stated that he has not been able to work since 2010. He indicated that he has trouble walking around the house. A December 2017 disability benefits questionnaire for psychological conditions assessed adjustment disorder with depressed mood secondary to multiple medical issues. The examiner assessed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A March 2018 disability benefits questionnaire for stomach conditions diagnosed history of a Billroth I operation and gastrojejunostomy. The physician found that the Veteran’s ability to work is affected secondary to chronic complications as well as daily symptoms. The Veteran underwent a VA examination for stomach conditions in April 2020. However, the examiner did not assess any functional impacts related to symptoms from the Veteran’s stomach or duodenal conditions. After review of the evidence, the Board finds that a TDIU is not warranted. The Board finds the evidence fails to show that the Veteran’s service-connected disabilities alone would reasonably preclude substantially gainful employment that his consistent with his education, training, and prior work history. Regarding the economic component, the record shows the Veteran likely worked as a heavy construction foreman prior to 2011. Social Security Administration (SSA) records show the Veteran worked for Lane Construction between 2007 and 2009, and worked for WD Lyle from 2004 to 2006. He reported both jobs as in construction. A January 2013 gastrointestinal consultation showed that the Veteran reported a high school education, and was a retired heavy construction worker. In an October 2019 statement the Veteran reported that he worked in construction. There is no evidence of employment for the period on appeal based on the limited information available. The Veteran meets the economic component of entitlement to a TDIU for the entirety of the appeal period under review. While the Veteran did not provide a completed VA Form 21-8940, the available evidence consistently indicates that he worked as a foreman in heavy construction and retired around 2010 to 2011. There is no evidence of employment for the period on appeal based on the limited information available. Regarding the non-economic component, however, the evidence does not demonstrate that the Veteran lacks the physical and mental capabilities to engage in substantially gainful employment. In this respect, the Board finds the commentary from the various Social Security and VA examiners probative. Regarding physical functioning, the Veteran experiences episodes of nausea, vomiting and diarrhea. As noted in the October 2012 VA examination, his symptoms likely would cause increased absenteeism from work due to exacerbation of his symptoms. Similarly, while the November 2013 VA examination did not assess a functional impact, it found that the Veteran experienced frequent recurring episodes of severe symptoms that occurs at least monthly and is only partially relieved by standard ulcer therapy. His bilateral hearing loss and tinnitus limit his ability to participate in conversations with people or to talk on the phone including talking on the phone. Although the Veteran’s service-connected gastrointestinal disability likely would cause increased absenteeism from work, it is not shown to preclude substantially gainful employment in a manner consistent with the Veteran’s work history and experience. The Board finds no compelling reason why the Veteran’s service-connected disability would preclude his ability to perform physical labor take regular breaks as needed. Moreover, the Americans with Disabilities Act (ADA) mandates reasonable accommodations for employees with substantial disabilities so long as the employee can satisfactorily perform the work once those accommodations are made. 42 U.S.C. Chapter 126. Regarding his mental functioning, psychiatric evaluations showed occupational and social impairment with deficiencies in most areas. The physician noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and impairment of short- and long-term memory. However, the physician did not indicate that the Veteran would be unable to work due to the Veteran’s mental functioning. A review of his SSA records show that the Veteran reported weakness, intermittent dysphasia, and dyspnea. His primary diagnosis was noted as myasthenia gravis. The Board also notes that the November 2017 disability benefits questionnaire noted medical diagnoses of Parkinsonism, prostate cancer, atrial fibrillation, and myasthenia gravis. However, these are not service-connected disabilities and therefore, cannot be considered. With respect to the Veteran’s and his representative’s contentions, the medical record does not support his statement that he would have been unable to maintain any employment due to his service-connected disabilities. The preponderance of the medical records demonstrate that he performs functions independently on a daily basis, which contradicts the report of being unable to function in an occupational environment. There is no compelling evidence showing that the Veteran was unemployable solely due to his service-connected pyloric ulcer, hearing loss, tinnitus, scar, and major depressive disorder disabilities. In sum, the preponderance of the evidence is against the claim for a TDIU. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.