BVA9500642 DOCKET NO. 93- 05 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for a vagotomy and gastrectomy, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for arthritis of the left hip as secondary to his service-connected shrapnel fragment wound residuals to the left thigh. 3. Entitlement to service connection for arthritis of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from December 1943 to December 1945. He was a prisoner of war from November 1944 to May 1945. This appeal arises from a June 1992 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefits sought. This decision was confirmed and continued by a rating action issued in September 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his gastrointestinal symptoms are more severe than the current disability evaluation would suggest. He asserts that he experiences persistent pain and epigastric distress. Therefore, he believes that a greater disability evaluation should be assigned. He further contends that he should be granted service connection for arthritis in the low back and left hip. He states that the left hip arthritis resulted from his left thigh shrapnel fragment wound residuals. He further asserts that his low back degenerative joint disease is related to his period as a prisoner of war. Therefore, he asserts that service connection should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims for service connection for arthritis of the lumbosacral spine and an increased evaluation; it is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for a left hip disability is well grounded. FINDINGS OF FACT 1. The veteran's postgastrectomy syndrome is no more than mild in nature, and is manifested by continuous mild manifestations. 2. A chronic back disability, to include arthritis, was not present in service, nor was arthritis manifested to a compensable degree within one year from separation therefrom, nor was traumatic arthritis manifested in a former prisoner of war. 3. There is no etiological relationship between the veteran's service-connected left thigh shrapnel fragment wound residuals and the development of a chronic left hip disability, to include arthritis. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability evaluation for a vagotomy and gastrectomy have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, Code 7308 (1993). 2. A chronic back disability, to include arthritis, was not incurred in or aggravated by service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309(c) (1993). 3. The veteran has not submitted evidence of a well grounded claim for entitlement to service connection for a left hip disability. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims on digestive and back disabilities are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented these claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained in this connection. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Entitlement to an increased evaluation for postgastrectomy syndrome. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1993). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. A 20 percent evaluation is warranted for mild postgastrectomy syndrome with infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or with continuous mild manifestations. A 40 percent evaluation requires a moderate postgastrectomy syndrome with episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, diarrhea and weight loss. A 60 percent evaluation requires a 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. Part 4, Code 7308 (1993). A review of the veteran's service medical records revealed that he never complained of, nor was he ever treated for, a gastrointestinal disorder during his active service. In February 1954, he was examined by VA, at which time it was noted that his diet had been inadequate during his tenure as a German prisoner of war, and was accompanied by an approximate 40 pound weight loss. He complained of suffering from stomach cramps for the three or four month period prior to this examination. Eating often relieved these cramps. He also reported experiencing heartburn, a sour stomach and vomiting spells. An upper gastrointestinal series (UGIS) revealed a scarred duodenal cap, probably due to an old ulcer, with no evidence of active disease. Chronic duodenal ulcer was diagnosed. An April 1973 VA examination revealed a healed abdominal scar, the residual of surgery for a partial gastrectomy for a duodenal ulcer. A functional gastroenterostomy without evidence of marginal ulceration was also noted. This examination noted that he had undergone surgery for a duodenal ulcer in 1962. A prisoner of war protocol examination conducted in August 1985 revealed his complaints of suffering from epigastric burning. He also recounted episodes of recurrent nausea and vomiting. In August, in a VA outpatient treatment record, he denied melena and hematochezia. During a November 1987 VA examination he stated that he felt sick and had diarrhea. An August 1989 VA examination included a UGI series which found a sliding hiatal hernia with diverticulum. Small clips from the vagotomy were present. There was no evidence of a filling defect or ulceration in the gastric remnant or the stoma or proximal jejunum. In June 1991, the veteran was hospitalized at a VA facility for complaints of abdominal pain of three weeks duration. He also reported some nausea, but referred to no gastrointestinal bleeding. It was noted that he had undergone a subtotal gastrectomy of about 80 percent of the stomach. The physical examination revealed soreness upon palpation of the epigastric area; the examination was otherwise negative. He was placed on an ulcer diet, as well as medication, after which his condition rapidly improved. The veteran was examined by VA in March 1992. This noted that he weighed 195 pounds, his maximum weight for the year. He was not anemic, although he reported nausea and occasional vomiting three to four times per week. He stated that he never had melena or hematemesis. Maalox and Mylanta usually provided relief of his symptoms. Postgastrectomy syndrome was diagnosed. After a careful review of the evidence of record, it is the finding of the undersigned that an increased evaluation for postgastrectomy syndrome is not warranted. The evidence of record indicates that the veteran's postgastrectomy syndrome is no more than mild in nature. There is no evidence that his disorder is manifested by episodes of epigastric disorders with characteristic mild circulatory symptoms after meals, diarrhea and weight loss. While the veteran claims that he has experienced weight loss, the record revealed that he weighed 195 pounds at his last VA examination, the weight that he had maintained for the past year. There were also no complaints of diarrhea, although he did report nausea and occasional vomiting. Clearly, the evidence of record does not demonstrate that the veteran suffers from the requisite symptomatology to warrant the assignment of a 40 percent disability evaluation. Furthermore, an extraschedular evaluation has not been shown to be warranted by the evidence. 38 C.F.R. § 3.321 (1993). The disability in question has not resulted in frequent periods of hospitalization, nor has it caused marked interference with employment. After carefully reviewing the evidence of record in this case, it is the finding of the undersigned that the preponderance of the evidence does not support a finding of entitlement to an increased evaluation for postgastrectomy syndrome. II. Entitlement to service connection for left hip arthritis as secondary to service- connected shrapnel fragment wound residuals. The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). While a claim need not be conclusive, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. See Tirpak v. Derwinski, 2 Vet.App. 609,610 (1992). As will be explained below, it is found that his claim is not well grounded. Under the applicable criteria, service connection may be granted for disabilities which are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). According to the evidence of record, the veteran received a shrapnel fragment wound to the left thigh prior to his capture by Germans in November 1944. He indicated that he had not received adequate treatment for this injury by the Germans. The separation examination performed in December 1945 made no mention of any shrapnel fragment wound residuals. A November to December 1953 VA hospital report noted that he referred to pain in the left thigh, at the site of the wound. The physical examination revealed a 1/2" scar on the posterior aspect of the left thigh. No diagnosis was made pertaining to this scar. A February 1954 VA examination reported that there was, on the posterolateral aspect of the left thigh at the junction of the upper and middle thirds, a blue, slightly depressed, scar approximately 1/8 inch in diameter. An x-ray revealed a metallic foreign body which measured about 2x5 mms in size. In December 1961 the veteran complained of a dull ache in the left thigh to his private physician. A physical examination found no swelling or erythema, and there was no localized tenderness. During a January 1963 VA examination, the veteran complained of pain in the left thigh. An x-ray revealed a minute metallic foreign body proximate to the femur. There was a clinically insignificant scar approximately 1/8 of an inch in diameter on the posterior surface of the left thigh. This scar displayed no tenderness, adherence, and was not accompanied by any soft tissue loss. The left hip was normal. The diagnoses were small superficial scar posterior thigh; minute foreign body; no evidence of disease of an orthopedic nature. A VA examination performed in April 1973 noted the presence of a faint scar on the left thigh. No findings referable to the left hip were made. In August 1985 a former prisoner of war protocol examination was conducted. While he complained of a painful left thigh, he made no mention of a left hip disability. A VA outpatient x-ray made in December 1985 noted the foreign body in the left thigh, but specifically stated that the veteran's hips were "OK." An August 1989 VA examination of the left thigh was normal. There was also good motion in the left lower extremity. A VA x-ray from August 1991 again noted the existence of a foreign body in the veteran's left thigh. Significantly, there was no arthritis in the left hip. A March 1992 VA examination found that there was no limitation of motion of the left hip, nor was there any tenderness present. Initially, it is noted that the law pertaining to secondary service connection requires that there must exist a disability that can be proximately related to a service connected disorder. 38 C.F.R. § 3.310(a) (1993). In the instant case, there is no left hip disability for which secondary service connection may be granted. While the veteran has presented with subjective complaints of a painful thigh, the objective evidence clearly demonstrates that there is no current left hip disability existent. X-rays have shown the presence of a minute foreign body in the left thigh; however, they have also left no doubt that there are no degenerative changes in the left hip that could be attributed to this foreign body. Furthermore, there is no functional impairment of this joint. The March 1992 VA examination clearly noted that there was no limitation of motion of the left hip. Therefore, it is the finding of the undersigned that there is no disability of the left hip that is proximately due to or the result of his service-connected shrapnel fragment wound residuals. The United States Court of Veterans Appeals has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period to service, or to a previously service-connected disorder. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Brown, 2 Vet.App. 141 (1992). In the instant case, as noted above, there is no competent medical evidence of the current existence of a left hip disability. Therefore, as the appellant's claim for service connection for this disorder is not well grounded, it must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of an earlier, adversely adjudicated claim. See Grottveit, at 93. III. Entitlement to service connection for a low back disability, to include arthritis. According to the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). If a veteran is a former prisoner of war and was interned or detained for not less than 30 days, post-traumatic osteoarthritis shall be service-connected if it manifest to a degree of 10 percent or more at any time after discharge or release from active duty, even if there is no record of such disease during service. 38 C.F.R. § 3.309(c). In the instant case, the veteran's service medical records contain no indication that a low back disability, to include arthritis, was manifested during active duty. The separation examination performed in December 1945 indicated that his musculoskeletal system was normal. There was no reference to a low back injury being suffered in service. Between November an December 1953, the veteran was hospitalized by VA. Six days prior to this admission he stated that he was working on a slate carrier when he suddenly strained his back and experienced sharp, severe pain. He commented that this pain had persisted in the low back and had begun to refer into the left leg. The physical examination revealed that there was tenderness in the lower portion of the back on the left, which referred into the left hip. The diagnosis was lumbosacral strain, treated and improved. A January 1962 VA examination, which examined the veteran's hip, noted that all other joints were normal. There were no complaints referable to his low back. In fact, there was no evidence of an orthopedic disease. It was not until the former prisoner of war protocol examination conducted in August 1985 that the veteran complained of intermittent low back pain. He stated that this pain had been present since 1952. The objective examination revealed his complaints of pain upon percussion of the lower thoracic and upper lumbar areas. Mild kyphosis was noted. A December 1985 VA x-ray noted the presence of degenerative joint disease in the thoracic spine. A June 1991 VA hospitalization record indicated the veteran's complaints of suffering from low back pain of three weeks duration. He denied any previous history of trauma or injury to the low back. He stated that he was diagnosed with degenerative joint disease years before. A March 1992 VA examination noted that August 1991 x-rays had confirmed the presence of considerable degenerative arthritis on the lumbosacral spine. The diagnosis was osteoarthritis at L5- S1, with anterior bridging osteophytes. After a careful review of the evidence of record, it is the conclusion of the undersigned that entitlement to service connection for a low back disability, to include arthritis, is not warranted. Initially, it is noted that there is no evidence that the veteran suffered from a back injury in service that could have resulted in the development of a chronic low back disability. In fact, the evidence of record does not indicate that the veteran injured his back until 1953, when he strained it while working in an mine. However, this injury appeared to have completely resolved with treatment. This finding is supported by the absence of any complaints of back problems until 1985, over thirty years later. Clearly, the evidence does not support a finding that the veteran's current low back problem was incurred in or aggravated during his period of active duty. However, service connection may be established if post-traumatic osteoarthritis manifests to a degree of 10 percent or more in a veteran who was a prisoner of war for at least 30 days. 38 C.F.R. § 3.309(c) (1993). It is the conclusion of the undersigned that service connection cannot be established on this basis. The evidence of record indicates that, while the veteran has been diagnosed with osteoarthritis in the low back, there is no objective evidence to suggest that this disorder is traumatic in nature. Therefore, it is the conclusion of the undersigned that the preponderance of the evidence is against entitlement to service connection for a low back disability, to include arthritis. ORDER An increased evaluation for postgastrectomy syndrome is denied. The appeal of the claim of service connection for a left hip disability is dismissed. Service connection for a low back disability, to include arthritis, is denied. C. P. RUSSELL 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.