Citation Nr: 0001888 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-34 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Propriety of the assignment of a 60 percent rating for the postoperative residuals of peptic ulcer disease. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The veteran served on active duty from June 1987 to February 1995. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 1997 rating decision of the No. Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for PTSD. Appeal is also taken from a May 1998 rating decision that assigned a 60 percent rating for the postoperative residuals for peptic ulcer disease, retroactive to the initial effective date of the award of service connection for this disorder. In this case, the veteran has appealed the appropriateness of the initial disability rating. Fenderson v. West, 12 Vet. App. 119 (1999). The issue of service connection for PTSD will be addressed in the remand portion of this decision. FINDING OF FACT The postoperative residuals of peptic ulcer disease are not shown to be productive of more than severe impairment, without evidence of repeated hospitalization or marked interference with employment. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for the postoperative residuals of duodenal ulcer disease have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.114, Code 7308 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran has presented a well grounded claim for an increased disability evaluation for his service-connected peptic ulcer disease within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). In addition, the facts relevant to the issue on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Severe postgastrectomy syndrome, associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms and weight loss with malnutrition and anemia will be assigned a 60 percent rating. 38 C.F.R. § 4.114, Code 7308. This is the maximum schedular evaluation assignable for this disorder. VA outpatient treatment records, dated through March 1998, have been reviewed. For the most part, these records show treatment at the mental hygiene clinic for a disability unrelated to this issue. There is no indication that the veteran has needed repeated hospitalization for treatment of the postoperative residuals of his peptic ulcer disease. When last evaluated, it was noted that anemia needed to be ruled out. Laboratory testing showed that the veteran's hemoglobin and hematocrit levels were within normal limits. At a hearing on appeal in January 1998, the veteran described symptoms of his postgastrectomy syndrome, including nausea and vomiting, diarrhea, weight loss and tarry stools. He stated that he basically had these symptoms all of the time. An examination was conducted by VA in April 1998. At that time, it was noted that the veteran had undergone a vagotomy and antrectomy in 1993 and that, since that time, he had had continued pain and stated that he has dumping. His symptoms were primarily after eating. He developed pain in his left neck, tiredness, lethargy, diarrhea, and occasionally vomited. He stated that he had reflux and vomited on occasion. He stated that he was supposed to be on Tagamet on a permanent basis. He stated that he discontinued its use because it did not help his symptoms. Examination showed a well-healed incision extending from the xiphoid process to the umbilicus. There was no retraction, redness, or erythema and the incision was well-healed. The liver was not enlarged. The spleen was not enlarged. There was a mild epigastric tenderness to palpation and no rebound. The impression was residuals of peptic ulcer disease, status postoperative antrectomy and vagotomy. As noted, the veteran is already receiving the maximum schedular evaluation for the postoperative residuals of peptic ulcer disease under the applicable regulations. It can be argued that a higher rating should be assigned on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). The Board does not have the authority to assign an extraschedular rating in the first instance, and under the circumstances of this case the Board finds no basis to refer the matter to designated VA officials for consideration of an extraschedular increased rating. Bagwell v. Brown, 9 Vet. App. 337 (1996). Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which there is an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular rating standards. Such factors do not appear in this case. There is nothing exceptional about the veteran's gastrointestinal disability, compared to similarly situated veterans, and the schedular 60 percent rating which has been assigned adequately compensates him for his related industrial impairment. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under these circumstances, an increased rating is not warranted. ORDER An increased rating for the postoperative residuals of peptic ulcer disease is denied. REMAND Regarding the issue of service connection for PTSD, it is noted that review of the record shows that the most recent supplemental statement of case on this issue refers to records of treatment, dated in May and June 1998, that the veteran received at the North Little Rock VA Medical Center (VAMC). Thus, there are treatment records that may be available. These records must be obtained prior to appellate consideration. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that if records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire them). In view of this fact, the claim must be remanded for the following: 1. The RO must ensure that copies of all records pertaining to treatment that the veteran has received at the VAMC since March 1998 are to be associated with his claims file. 2. The RO should make a determination as to whether the veteran's claim for service connection for PTSD is well grounded. 3. If the RO finds the claim to be plausible, they should request from the veteran a statement containing as much detail as possible regarding the stressors to which he was purportedly exposed during service. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, his service units, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 4. The RO should take customary measures to obtain copies of all the veteran's service records for incorporation in the claims file. 5. The RO should forward the veteran's statement and prior statements of alleged service stressors (along with copies of his service personnel records and any other relevant evidence) to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), and request that that organization investigate and attempt to verify the alleged stressors. 6. Following the above, the veteran should be examined by a panel of two VA psychiatrists who have not previously examined him to determine the exact diagnosis, if any, of the psychiatric disorder. Each psychiatrist should conduct a separate examination with consideration of the criteria for post- traumatic stress disorder. The examination report should include a detailed account of all pathology found to be present. If there are different psychiatric disorders than post-traumatic stress disorder, the board should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of post- traumatic stress disorder is appropriate, the examiners should specify the credible "stressors" that caused the disorder and the evidence upon which they relied to establish the existence of the stressor(s). See, West v. Brown, 7 Vet. App. 70 (1994); Cohen v. Brown, 10 Vet. App. 128 (1997). They should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. The psychiatrists should describe how the symptoms of post-traumatic stress disorder affect his social and industrial capacity. The report of examination should include a complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) and the Mississippi Scale for Combat-Related Post-Traumatic Stress Disorder are to be accomplished. The examiners should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physicians include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to the examination. When this action is completed, the claims should be reviewed by the RO. Should the decision remain adverse, the veteran should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to this Board for further appellate consideration. The appellant need take no action until he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. S. SIEGEL Acting Member, Board of Veterans' Appeals