Citation Nr: 21011159 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-04 830 DATE: March 1, 2021 ORDER A 20 percent rating, but no higher, for subtotal gastrectomy for duodenal ulcer disease is granted, subject to the laws and regulations governing the payment of monetary awards. A separate noncompensable rating, but no higher, for a scar of the anterior abdomen is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT For the entire appeal period, the Veteran’s subtotal gastrectomy for duodenal ulcer disease results in no more than mild postgastrectomy syndrome with infrequent episodes of epigastric distress with mild circulatory symptoms or continuous mild manifestations, and a scar of the anterior abdomen that is asymptomatic, not of a size warranting a compensable rating, and does not result in disabling effects. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for subtotal gastrectomy for duodenal ulcer disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.111, 4.112, 4.113, 4.114, Diagnostic Code (DC) 7308. 2. The criteria for a separate noncompensable rating, but no higher, for a scar of the anterior abdomen have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1955 to July 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2015 by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of evidence received since the issuance of the January 2019 statement of the case. Entitlement to a compensable rating for subtotal gastrectomy for duodenal ulcer disease. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The period on appeal begins July 8, 2014, the date VA received the Veteran’s claim for an increased rating for his subtotal gastrectomy for duodenal ulcer disease, plus the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability is rated as noncompensably disabling pursuant to DC 7308, which pertains to postgastrectomy syndromes. 38 C.F.R. § 4.114. DC 7308 provides for a 20 percent rating for mild postgastrectomy syndrome with infrequent episodes of epigastric distress with characteristic 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; DC 7308. Further, 38 C.F.R. § 4.111 provides that there are various postgastrectomy symptoms which m ay occur following anastomotic operations of the stomach. When present, those occurring during or immediately after eating, and known as the “dumping syndrome” are characterized by gastrointestinal complaints and generalized symptoms simulating hypoglycemia; those occurring from 1 to 3 hours after eating usually present definite manifestations of hypoglycemia. 38 C.F.R. § 4.112 states that, for purposes of evaluating conditions in § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “inability gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight means the average weight for the two-year-period preceding onset of the disease. Treatment records from Moncrief Army Medical Center reflect a prescription for Prilosec for esophageal reflux without specific gastrointestinal complaints. On VA examination in December 2014, it was noted that the Veteran had a subtotal gastrectomy for ulcer disease in the 1970’s and was taking Prilosec; however, at the time of the examination, he did not report any issues with his condition, to include increased pain or dyspepsia, or incapacitating episodes. At a VA examination in August 2016, the Veteran reported that he continued to take Prilosec and, if he missed any doses, he experienced nausea and occasional mild pain. It was noted that he had recurring episodes of symptoms that were not severe that occurred four or more times per year that lasted less than a day. The Veteran’s symptoms were noted to include abdominal pain, which occurred periodically, but less than monthly, and was relieved by standard ulcer therapy, and mild nausea that occurred four or more times a year and lasted less than one day. There were no incapacitating episodes. It was further observed that he had a 10 by 0.25 inch linear scar on the anterior abdomen that was neither painful nor unstable. At his January 2021 Board hearing, the Veteran testified that he experiences severe pain, cramps, and bloating, which lasts for approximately three days, three times a year. He also reported that he has nausea on a regular basis and vomits approximately two to three times per year, but denied diarrhea and weight loss. Finally, the Veteran indicated that he cannot drink anything prior to going to bed or he will wake up gagging and having a hard time breathing. Based upon the foregoing and resolving all doubt in favor of the Veteran, the Board finds that a 20 percent rating, but no higher, for his subtotal gastrectomy for duodenal ulcer disease is warranted. In this regard, the record reflects that, throughout the appeal period, such disorder requires continuous medication for control and, as detailed at the August 2016 VA examination, he experienced recurring episodes of symptoms, described as periodic abdominal pain and mild nausea, that were not severe that occurred four or more times per year that lasted less than a day. Similarly, at the January 2021 Board hearing, the Veteran described episodes of severe pain, cramps, and bloating three times year, regular nausea, and vomiting two to three times a year. Based on such descriptions, the Board finds that the Veteran’s subtotal gastrectomy for duodenal ulcer disease results in mild postgastrectomy syndrome with infrequent episodes of epigastric distress with mild circulatory symptoms or continuous mild manifestations, thus warranting a 20 percent rating under DC 7308. In this regard, the Board observes that, in his June 2015 notice of disagreement, the Veteran specifically indicated that he was seeking a 20 percent rating for such disability. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, as his reported symptomatology does not more nearly approximate moderate or severe postgastrectomy syndromes as contemplated in DC 7308, a higher rating under such DC is not warranted. The Board further finds that a higher or separate rating is not warranted under any other potentially applicable DC. However, in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), the United States Court of Appeals for Veterans Claims (Court) held that when a condition is specifically listed in the rating schedule, it may not be rated by analogy. See also Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that "[a]n analogous rating... may be assigned only where the service-connected condition is 'unlisted.'"). Thus, as the Veteran's subtotal gastrectomy for duodenal ulcer disease is specifically listed in the Rating Schedule under Diagnostic Code 7308, such disability may not be rated by analogy. Moreover, the Veteran has not reported any additional symptoms of his subtotal gastrectomy for duodenal ulcer disease that are not contemplated by such DC. Further, 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Disease of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Furthermore, the Board notes that, while the Veteran has reported taking Prilosec to control his gastrointestinal symptoms, the ameliorative effects of such medication was not considered in evaluating the severity of such disability. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a DC is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). Nonetheless, the Board notes that the Veteran’s subtotal gastrectomy for duodenal ulcer disease is manifested by a scar, described as a 10 by 0.25 inch linear scar on the anterior abdomen that was neither painful nor unstable at the August 2016 VA examination. Thus, as such scar is asymptomatic, not of a size warranting a compensable rating, and does not result in disabling effects, a separate noncompensable rating, but no higher, for such is warranted for the entire appeal period pursuant to DC 7802, which contemplates burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear, i.e., not associated with underlying tissue damage. 38 C.F.R. § 4.118. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected subtotal gastrectomy for duodenal ulcer disease with scar; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Consequently, the Board finds that, for the entire appeal period, the Veteran is entitled to a 20 percent rating, but no higher for his subtotal gastrectomy for duodenal ulcer disease, and a separate noncompensable rating, but no higher, for his scar of the anterior abdomen. In reaching such decision, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in such partial awards. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable and such increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.