BVA9503648 DOCKET NO. 92-12 632 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increase in the 60 percent evaluation assigned for chronic gastrectomy syndrome. 2. Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Gallagher, Counsel INTRODUCTION The appellant had active service from January 1949 until February 1950. This appeal arises from a rating decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO) in February 1991 which denied an increased evaluation for the service-connected gastrectomy syndrome and entitlement to a total rating by reason of individual unemployability due to service- connected disabilities. This case was remanded by the Board in January 1994 for further development. It was returned to the Board in December 1994. CONTENTIONS OF APPELLANT ON APPEAL It is contended on behalf of the appellant that, under the provisions of 38 U.S.C.A. § 5107(b), the veteran does not have to establish his claim by a preponderance of the evidence but simply has to establish a reasonable basis for entitlement to the benefits sought. Also, it is maintained an entitlement need not be established beyond a reasonable doubt or by clear and convincing evidence or by a preponderance of the evidence. The preponderance of the evidence must be against the veteran for benefits to be denied. It is stressed that, when the evidence is in relative equipoise, the veteran prevails as the United States Court of Veterans Appeals (the Court) found in Gilbert v. Derwinski 1 Vet.App. 49(1990). Reference is made to the lay statements submitted from individuals concerning the veteran's severe service-connected post gastrectomy syndrome. It is requested that the provisions of 38 C.F.R. § 4.7 be considered. The appellant contends, in substance, disabilities stemming from his service-connected post gastrectomy syndrome, mainly, frequent diarrhea and uncontrolled bowel movements, prevent the veteran from engaging in substantially gainful employment. In addition, it is contended that, in considering the issue of unemployability, the provisions of 38 C.F.R. § 4.15 be applied as well as 38 C.F.R. § 4.10 and 38 C.F.R. § 4.2. It is stressed that there must be an analysis of the effect of the service- connected disability upon the veteran's ability to secure and follow a substantially gainful occupation, both/alone and in combination with other service-connected disabilities. Goodman v. Derwinski, 1 Vet.App. 280 (1990). It is also contended that a claimant need not be a total "basket case" before there is an inability to engage in substantially gainful activity. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for an increased evaluation for his post gastrectomy syndrome and for a total rating by reason of individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. The appellant's post gastrectomy syndrome is primarily manifested by complaints of constant diarrhea and uncontrollable bowel movements and results in severe disability, the maximum under the rating schedule for post gastrectomy syndrome. 2. In addition to the service-connected post gastrectomy syndrome, the appellant has been granted service connection for proctitis, anal papilla, post operative, evaluated as non compensable. He has a combined 60 percent evaluation for his service-connected disabilities. 3. The appellant has a high school education and occupational experience as a heater man, a nursing assistant and a fashion coordinator. He last worked full time in 1971. 4. The appellant's service-connected disabilities do not render it impossible for the average person to follow a substantially gainful occupation or render the appellant unable to secure or follow a substantially gainful occupation consistent with his occupational experience and education. CONCLUSIONS OF LAW 1. The criteria for an increase in the 60 percent evaluation assigned for post gastrectomy syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, 4.7, Code 7308 (1994). 2. The criteria for the assignment of a total rating by reason of individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to an Increase in the 60 Percent Evaluation Assigned for Post Gastrectomy Syndrome Initially, the Board has found this issue to be well grounded and that all pertinent evidence is of record. 38 U.S.C.A. § 5107. The RO, by rating decision in October 1950, granted the veteran entitlement to service connection for a moderate duodenal ulcer, evaluated as 20 percent disabling. In April 1962, the veteran underwent a gastric resection. A Rating decision in June 1962 continued the 20 percent evaluation for a duodenal ulcer, postoperative, evaluated under Diagnostic Code 7305. The 20 percent evaluation remained in effect until a decision of the Board in March 1980 found that the residuals of a gastrectomy included dumping syndrome after meals, diarrhea and some weight loss and awarded a 40 percent evaluation under Code 7308, postgastrectomy syndrome. In 1989, the appellant reopened his claim for an increased evaluation and following a Board remand in February 1990, and VA special gastrointestinal examinations in April and May 1990, the RO increased the evaluation for chronic gastrectomy syndrome to 60 percent, the maximum schedular evaluation under this code effective from August 1988. In October 1990, the veteran submitted an application for an increased evaluation and a total rating by reason of individual unemployability. In October 1990, copies of VA outpatient treatment records from January 1989 to October 1990 were received. In May 1990, the examiner reported that he had determined that the diarrhea was likely osmotic because it only occurred after eating. Thyroid studies and iron tests were normal. The veteran was advised to eat 6 small meals a day. In September 1991, several lay statements were received concerning the veteran's problems with frequent bowel movements. One statement by Glen Bonner also indicated, in addition to his problems with his bowels, the veteran suffered from severe shortness of breath. The appellant had a short period of VA hospitalization in November 1991. It was reported that for the past six weeks when sick he would take extra pills. The final diagnoses included toxicity, chronic obstructive pulmonary disease and dumping syndrome, status post gastrectomy. The appellant was examined by the VA in January 1992. He reported that he had been hypertensive for years and had been taking medications for emphysema. It was reported he had had severe diarrhea since his operation. This usually happened after eating but lately it happened at any time. He was unable to control the diarrhea and it happened daily. His appetite was good but he was unable to gain weight. On physical examination, the sphincter tone was poor. His current weight was 142 and it was reported that his maximum weight in the past year was 154. He was not obviously anemic. He claimed periodic vomiting and stated he vomited three times a week in association with the severe diarrhea. He denied recurrent hematemesis or melena. The area pain was generalized. The symptoms were chronic and daily. Blood testing disclosed that his hemoglobin was 13.4 g/dl and that his hematocrit was 40.9 percent. Upper gastrointestinal films disclosed that the esophageal motility was within normal limits. No gastroesophageal reflux occurred during the examination. He was status post subtotal gastrectomy with Billroth II anastomosis. The anastomosis was patent and normal in appearance. The radiologist's impression was 1-centimeter polypoid filling defect in the distal esophagus that was well seen and partial gastrectomy with Billroth II anastomosis. VA outpatient records disclosed that the veteran was seen in February and March 1992 on numerous occasions with complaints of diarrhea. X-rays of the abdomen In March 1992 showed large quantities of fecal matter throughout the colon with no evidence of free intraperitoneal air. Clinical impressions included dumping syndrome and chronic obstructive pulmonary disease. His weight was 141 1/2 pounds in March 1992. In March 1992, the veteran's nephew reported concerning the veteran's problems with his stool. He maintained that sometimes when the veteran stooled on himself he passed out and that he had to put his uncle back into bed. In March 1992, a letter was received from Glen Bonner, a friend, to the effect the veteran was presently weakened as the result of his diarrhea and stomach cramps. He stated the veteran was afraid to leave home even for church and became very embarrassed when he soiled himself. VA outpatient records disclose that the veteran was seen again in April 1992. His recorded weight was 149 in April 1992. The dumping syndrome was described as stable. Following the Board's remand, the veteran underwent a VA social and industrial survey in February 1994. He was reported to weigh 147 pounds at that time. He reported that he had many medical problems and that he did not leave his house for long periods of time due to his incontinence. The longest he was away was about 10 hours. He went out to pay bills, shop and attend appointments at the VA. He experienced chronic pain in his lower abdomen continuing down to this testes. He was also undergoing treatment and receiving medication for psychiatric problems and he also was receiving treatment for hypertension and he reported having emphysema. He reported that dumping hurt. He stated he had been hospitalized one time in the last year for an accidental overdose of pills for his breathing difficulties. The veteran became tearful while reporting his frustrations with his medications and his impressions of his doctor's skepticism. He also reported that he had shingles, a nerve condition where he broke out in an itchy rash last October/November 1993. He indicated after he got nervous he broke out in an itchy rash. The veteran presented his chronic incontinence as a major disability. He stated that he constantly wears Attends and uses pads on his bed but that these products were getting very expensive at $75 to $100 a month. When he cannot afford these products, he used paper towels, tissues and toilet paper. He indicated the VA had stopped supplying these products approximately two years ago. He stated that when he worried or became nervous he exacerbated his dumping syndrome. He stated that he did not know when he was going to have a dumping episode because sometimes it just felt like gas. He tried to regulate the dumping by avoiding food intake. He reported that frequently he had no control over his bowels and when he was dumping, sometimes he also vomited. He also claimed bleeding through the rectum. He was concerned about the possibility of a malignancy. He indicated his last job was in 1974 at a nursing home where he was a nurse's assistant. He stated that he wondered "who would want to hire someone who stools on themselves." He reported a past history of employment with department stores working as a "fashion coordinator" and window displayed. He also reported working in a steel company where he believed his lung problems originated. In regard to social life he stated, "I love church, I wish I could go more often." He disclosed that he read a lot, watched television and enjoyed cooking. He stated that he could not have dairy products or sweets but enjoyed making them for others. The examiner's assessment was that the veteran stated "I need the raise (in disability) cause things are tough where I live and transportation is tough." The examiner indicated the veteran seemed unable to maintain employment due to his chronic medical complications. He seemed cooperative in giving information and interested in being a part of the process of his disability increase. The diagnostic impression was dysthymia. The psychological stressors were serious chronic illness and ongoing physical difficulties due to his dumping syndrome. Outpatient records obtained pursuant to the Board's 1994 remand disclosed that the veteran was seen in July 1993 with complaints of chronic abdominal pain and more severe diarrhea in the past four days. He denied vomiting or melena. On physical examination, bowel sounds were positive. He had mild right lower quadrant tenderness and a slightly decreased sphincter tone. There was no hematemesis noted. The pertinent impression was dumping syndrome. When seen in the VA outpatient clinic in September 1993, it was reported that his diarrhea/bowel habits were stable. His weight was 137 pounds. When seen in January he was treated primarily for hypertension although dumping syndrome/B12 deficiency was also noted. In March 1994, copies of clinical records of the appellant were received from the Social Security Administration disclosing treatment in 1983 for complaints including diarrhea and vomiting. Additionally received was a report of a private examination in March 1988 which contained the clinical assessment of status post gastrectomy for peptic ulcer disease with probable secondary dumping syndrome. In June 1994, Doris L. Head reported the veteran was very sick, and when he dumps you cannot stay in the house, it smells so bad. His nerves are also bad. At times he cannot eat. She calls him at night and checks him out to find out if he has made a mess. In July 1994, a statement was received from Pamela Allen that 4 or 5 times a week she cleans up and cooks and washes for him. She is also his girl friend. She claims that his lower part of his stomach and back hurt him constantly. Prior to evaluating the post gastrectomy syndrome, the Board will address the contention that 38 under U.S.C.A. § 5107(b) the veteran merely has to establish a reasonable basis for entitlement and not establish his claim by a preponderance of the evidence. The Board stresses, however, that this provision only provides that when there is an approximate balance of positive and negative evidence, the benefit of doubt in resolving each issue shall be given to the claimant. It is true that a preponderance of the evidence in the veteran's favor is not required. Under the rating schedule, a maximum 60 percent evaluation is assigned for severe gastrectomy syndrome associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms and weight loss with malnutrition and anemia. 38 C.F.R. Part 4, Code 7308. A 100 percent evaluation is assigned for a marginal (gastrojejunal) ulcer which is pronounced with periodic or continuous pain and relieved by standard ulcer therapy with periodic vomiting, recurring melena or hematemesis, and weight loss and totally incapacitating symptoms. 38 C.F.R. Part 4, Code 7806. As indicated above, the current 60 percent evaluation is the maximum for a post gastrectomy syndrome. Although a 100 percent evaluation may be assigned for pronounced marginal (gastrojejunal ulcer) which is a gastric ulcer in the jejunal mucosa near the site of the gastrojejunal anastomosis, the record does not indicate, that the veteran suffers from such an ulcer or any ulcer at this time. Symptomatology such as diarrhea and anemia, manifested by the appellant, are contemplated by the 60 per cent evaluation. The veteran is not shown to be anemic, although his weight does fluctuate. Therefore, the Board finds the preponderance of the evidence is against the veteran's claim for increased evaluation under the rating schedule. In evaluating this disorder, consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by the Court in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The Board finds that 38 C.F.R. § 4.7 does not apply in this case because there is no higher evaluation under the rating schedule for this disability. Also, we do not find that the post gastrectomy syndrome has resulted in frequent hospitalizations or presented such an unusual disability picture as to warrant an extraschedular evaluation under 38 C.F.R. § 3.321(b). In this regard the Board stresses that despite the numerous lay statements in support of the appeal and the veteran's statements, the objective testing disclosed the anastomosis was patent and normal in appearance and when examined in the outpatient clinic in July 1993 bowel sounds were normal and he had only a slightly decreased sphincter tone. II. Entitlement to a Total Rating by Reason of Individual Unemployability Due to Service-Connected Disability The Board finds that this claim is also well grounded and that all relevant evidence is of record, particularly in view of the remand for further development. In October 1990, the veteran filed an application for increased compensation based on unemployability. At that time he reported that he last worked full time in 1971 and that he had occupational experience as a heater man. He indicated he had a high school education. On VA Form 21-8940, received in April 1994, the veteran reported he had not been able to work in the last 15 years or more because of high blood pressure, falls and the dumping syndrome as well as bad nerves. He also indicated that he was short of breath. The record indicates the veteran has been granted disability benefits by the Social Security Administration since 1979. A disability determination rationale review in January 1985 listed heart disease as the primary diagnosis. He was also noted to have pulmonary pathology and the dumping syndrome. A disability determination rationale review March 1988 reported chronic obstructive pulmonary disease as the primary diagnosis and ischemic heart disease as the secondary diagnosis. In adjudicating the appellant's claim, the Board has initially considered 38 C.F.R. § 4.16(a) which provides that a total rating for compensation may be assigned where the schedular rating is less than total when a disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disability provided if there is only one disability, then this disability shall be ratable at 60 percent or more. The appellant does meet this threshold requirement but the evidence must still demonstrate that he is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. In addition, the Board has considered 38 C.F.R. § 3.340 which provides a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. In other words, 38 C.F.R. § 3.340 deals with the average person standard and 38 C.F.R. § 4.16 (a) deals with the particular individual. The award of a total rating requires a showing that the veteran is precluded from employment due to service connected disabilities. The adverse affects of advancing age may not be considered in support of the claimed benefit. 38 C.F.R. § 4.19. In evaluating the appellant's claim, the Board stresses that only disabilities stemming from the service-connected conditions, namely the post gastrectomy syndrome and the proctitis, anal papilla may be considered. There is no indication of record that the veteran currently has any significant disability as the result of the latter condition. The Board also stresses the veteran has several non service-connected disabilities including his cardiovascular disorder, his chronic obstructive pulmonary disease, arthritis, and a nervous disorder. On the recent VA Form 21-8940 he indicated that his high blood pressure, falls, and bad nerves have contributed to his inability to work. The Board has considered the award of Social Security benefits by the Social Security Administration, which the Court in Martin v. Brown 4 Vet.App. 136 (1993), determined was "pertinent to a determination in the appellant's ability to engage in a substantially gainful employment." The Board stresses, however, that the VA is required to limit consideration of the veteran's disability to service-connected disabilities alone. Documentation received from the Social Security Administration discloses that either the nonservice-connected heart disease or pulmonary disease have been considered primary disabilities and not the post gastrectomy syndrome which has always been considered a secondary disability by Social Security in the awarding of those benefits. The board is aware, as contended, that the Court in Goodman v. Derwinski 1 Vet.App. 280(1991) found that there must be an analysis of the service connected disabilities on the appellants ability to secure and follow a substantially gainful occupation. As conceded above. the service connected post gastrectomy syndrome does result in severe disability. Also, the VA social and industrial survey indicate the appellant claimed serious problems with bowel control. The Board notes, however, the VA social worker's diagnostic impression was dysthymia which is not a service connected disability. Also, the veteran did admit that he could be away from home for as long as 10 hours. After reviewing all of the evidence, and considering the veteran's educational and occupational experience, and the current nature and extent of his service-connected disabilities, as well as all applicable regulations, the Board finds the evidence does not demonstrate the appellant's service-connected disabilities are sufficient to render it impossible for the average person or for the veteran individually to secure and follow any substantially gainful occupation. The fact that the veteran is unemployed is not enough. The question is whether his service-connected disorders, without regard to his nonservice-connected disorders or advancing age make him incapable of performing the acts required by employment. See Van Hoose v. Brown, 4 Vet.App. 361 (1993). He has not presented, nor has the Board found, circumstances that place this veteran in a different position than other veteran's rated 60 percent disabling. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran. See 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet.App. 361. As noted, in this case the service-connected disorders alone do not render the veteran unemployable. Also, the Board is aware that 38 C.F.R. § 3.321(b) provides that, to accord justice to the exceptional case where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity due exclusively to the service-connected disability or disabilities may be assigned. The governing norm of these exceptional cases is a finding that the case presented such 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 regular schedular standards. In this case, as indicated in adjudicating the increased rating issue, the Board finds the evidence in its entirety does not present such an exceptional or unusual disability picture as to render impractical the application of regular schedular standards. Considering only the disabilities stemming from the service-connected disorders, the Board finds he could perform gainful employment. Therefore, we find that he is not entitled to a total evaluation under the applicable provisions of 38 C.F.R. Parts 3 and 4. Since the preponderance of the evidence is against allowance of his claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to increased evaluation for post gastrectomy syndrome is denied. Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.