BVA9501864 DOCKET NO. 93-06 571 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an increased rating for postoperative residuals of a left nephrectomy, currently rated as 30 percent disabling. Entitlement to an increased rating for postoperative residuals of a gastrectomy for treatment of a duodenal ulcer, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael Martin, Associate Counsel INTRODUCTION The veteran had active service from April 1967 to March 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 1992 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by failing to assign a rating higher than 30 percent for postoperative residuals of a left nephrectomy. He asserts that the disorder causes pain, and requires that he take numerous medications. He also states that he has had to be hospitalized several times for treatment of the disorder. The veteran also contends that the RO made a mistake by failing to assign a rating higher than 20 percent for postoperative residuals of a gastrectomy for treatment of a duodenal ulcer. He asserts that the disorder causes pain, weight loss and diarrhea. 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 evidence supports the assignment of a 60 percent rating for postoperative residuals of a left nephrectomy, and supports the assignment of a 40 percent rating for the postoperative residuals of a gastrectomy. FINDINGS OF FACT 1. The postoperative residuals of a left nephrectomy include a definite decrease in function of the remaining kidney. 2. The postoperative residuals of a gastrectomy for treatment of a duodenal ulcer are moderate in degree. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating for postoperative residuals of a left nephrectomy are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7500 (1993). 2. The criteria for a 40 percent rating for postoperative residuals of a gastrectomy for treatment of a duodenal ulcer are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7308 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the claims are not inherently implausible. The Board is also satisfied that all relevant facts have been properly developed. The veteran has been afforded a disability evaluation examination by the VA, and his recent medical treatment records have been obtained. The veteran has declined the opportunity to have a personal hearing. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with development of evidence is required. I. Entitlement to an Increased Rating for Postoperative Residuals of a Left Nephrectomy. The Board has considered the full history of the veteran's postoperative residuals of a left nephrectomy. The veteran's service medical records show that in May 1968 the veteran received a severe blow to the left side of the abdomen. The impression was contusion to kidney. He subsequently underwent a left nephrectomy to remove a "fractured" left kidney. In June 1968, the veteran was found to be qualified for limited duty. A service medical record dated in July 1968 shows that the veteran was seen for a routine follow up visit. He reported a complaint of having incisional pain. Examination revealed a well healed flank incision. The veteran was to continue restricted duty. A report of a medical history given by the veteran in November 1968 shows that he stated that he had hematuria at the time of his nephrectomy, but that there had been no complications. In September 1970, the veteran submitted a claim for disability compensation for removal of a left kidney. A private hospital discharge summary dated in October 1970 was obtained and revealed that the veteran was hospitalized for treatment of lower abdominal pain. The diagnoses included (1) status post left nephrectomy; (2) compensatory hypertrophy, right kidney with mild ureteral pelvic junction stricture. The veteran was afforded a disability evaluation examination by the VA in July 1971. Subsequently, in a rating decision of September 1971, the RO granted service connection for postoperative residuals of a left nephrectomy, and assigned a 30 percent disability rating. The rating has remained at that level since that time. In May 1992, the veteran requested an increased rating for his postoperative nephrectomy. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The diagnostic codes applicable to renal disorders were revised effective February 17, 1994. Under 38 C.F.R. § 4.115b, Diagnostic Code 7500, removal of one kidney warrants a minimum rating of 30 percent. A veteran with a removed kidney may also be rated on the basis of renal dysfunction if there is nephritis, infection, or pathology of the remaining kidney. Renal dysfunction is rated under 38 C.F.R. § 4.115a. Under that section, a 60 percent rating is warranted if there is constant albuminuria with some edema, or a definite decrease in kidney function, or hypertension which is at least 40 percent disabling under Diagnostic Code 7101. The only evidence regarding the current severity of the postoperative nephrectomy is VA medical treatment records. The records show that on several occasions the veteran has reported complaints of pain in the area of his kidney. A VA hospital discharge summary dated in September 1992 shows that the veteran was found to have mild to moderate hydronephrosis. VA hospitalization records dated in October 1992 show that the veteran was found to have a partially obstructed right kidney. VA medical records dated in April 1993 show that the veteran continued to report complaints of back pain. A renogram reportedly revealed no change from previous studies. Based on the foregoing evidence, the Board finds that the postoperative nephrectomy has resulted in a definite decrease in the function of the remaining kidney. Accordingly, the criteria for a 60 percent rating for postoperative residuals of a left nephrectomy are met. The Board further finds, however, that a rating higher than 60 percent is not warranted. Under 38 C.F.R. § 4.115a, an 80 percent rating is warranted if there is persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The evidence does not show that the disorder is productive of these manifestations. Accordingly, the schedular criteria for a rating higher than 60 percent are not met. The Board also finds that a rating higher than 60 percent is not warranted on an extra- schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder is not shown to present an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that a rating higher than 60 percent is not warranted on either a schedular or extra-schedular basis. II. Entitlement to an Increased Rating for Postoperative Residuals of a Gastrectomy for Treatment of a Duodenal Ulcer. The Board has considered the full history of the veteran's postoperative gastrectomy. The veteran's service medical records show that he was seen on numerous occasions with complaints pertaining to the stomach. A report of a medical examination conducted in November 1968 shows that the diagnoses included peptic ulcer disease controlled with diet and antacids. The veteran submitted an application for disability compensation for an ulcer in September 1970. The veteran was afforded a disability evaluation examination by the VA in July 1971. In the report of that examination, it was noted that the veteran had undergone a gastrectomy in 1970. In a rating decision of September 1971, the RO granted service connection for postoperative residuals, gastrectomy for duodenal ulcer, and assigned a 20 percent disability rating. A VA hospital discharge summary dated in February 1973 shows that the veteran was hospitalized for treatment of upper gastrointestinal bleeding. In a rating decision of March 1973, the RO confirmed the previously assigned rating. The veteran was hospitalized again by the VA in December 1976. Subsequently, in a raing decision of March 1977, the RO again confirmed the 20 percent rating. A VA hospital discharge summary dated in March 1983 shows that the veteran was again hospitalized for treatment of gastrointestinal bleeding. In a rating decision of April 1983, the RO again confirmed the 20 percent rating. In May 1992, the veteran requested an increased rating for his stomach disorder. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. A postoperative gastrectomy may be rated under 38 C.F.R. § 4.114, Diagnostic Code 7308. Under that Diagnostic Code, a 60 percent rating is warranted for postgastrectomy syndrome which is severe with associated nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. A 40 percent rating is warranted for postgastrectomy syndrome which is moderate in degree with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 20 percent rating is warranted for post gastrectomy syndrome which is mild in degree, with infrequent episodes of epigastric distress, with characteristic mild circulatory symptoms or continuous mild manifestations. The evidence regarding the current severity of the veteran's postoperative gastrectomy includes a report of a disability evaluation examination conducted by the VA in July 1992. The report of that examination revealed that he had attacks of epigastric distress which he controlled with Tagamet and with alterations in his diet. He also stated that he had much more epigastric distress since he started taking medications for gout about 1-1/2 months earlier. The veteran described having chronic, intermittent epigastric pain which was generally associated with a great deal of gas. His appetite reportedly was good and there had been no recent significant weight loss. Examination revealed that the abdomen was soft with normal bowel sounds. The diagnoses included duodenal ulcers by history, status post subtotal gastrectomy. Subsequently, in August 1992, the veteran underwent an upper GI series using barium. The study was interpreted as revealing the stomach was subtotally resected with end to side anastomosis. There was no demonstration of obstruction or ulceration. Information regarding the severity of the veteran's postoperative gastrectomy is also found in recent VA medical treatment records. A VA medical record dated in October 1992 shows that the veteran's nutritional status was described as being mildly compromised as his weight was only 88 percent of his ideal body weight. A VA medical record dated in April 1993 shows that an endoscopy revealed that the veteran had an ulcer. Based on the foregoing evidence, especially the April 1993 records showing the presence of an ulcer, the Board finds that the manifestations of the veteran's postoperative gastrectomy are moderate in degree. Accordingly, the criteria for a 40 percent rating for postoperative residuals of a gastrectomy for treatment of a duodenal ulcer are met. The Board further finds, however, that a rating higher than 40 percent is not warranted. The evidence does not show that the disorder is severe in degree. Accordingly, the schedular criteria for a rating higher than 40 percent are not met. The Board also finds that a rating higher than 40 percent is not warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1) (1993). The disorder is not shown to present an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Accordingly, the Board concludes that a rating higher than 40 percent is not warranted on either a schedular or extra-schedular basis. ORDER A 60 percent rating for postoperative residuals of a left nephrectomy is granted, subject to the law and regulations applicable to the payment of monetary benefits. A 40 percent rating for postoperative residuals of a gastrectomy for treatment of a duodenal ulcer is granted, subject to the law and regulations applicable to the payment of monetary benefits. WARREN W. RICE, JR. 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.