Citation Nr: 0002329 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-51 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for the post-operative residuals of a subtotal gastrectomy currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD D. P. Havelka, Associate Counsel INTRODUCTION The veteran's active military service extended from August 1948 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. That rating decision, in part, continued a 40 percent rating for the post-operative residuals of subtotal gastrectomy which had been in effect since October 1957. The case was previously before the Board in October 1997, when it was remanded for retrieval of medical records and examination of the veteran. The requested development has been completed. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected post-operative residuals of a subtotal gastrectomy are manifested by bile regurgitation with heartburn, diarrhea, and complaints of pain and discomfort. 3. The service-connected post-operative residuals of a subtotal gastrectomy do not result in more than moderate disability. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for post- operative residuals of subtotal gastrectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.114 and Diagnostic Code 7308 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that his service connected stomach disability has increased in severity is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings, which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321, and Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part, or system, in self-support of the individual. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, while the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran had a history of a duodenal ulcer and underwent a subtotal gastrectomy in 1957, following which, in November 1957, a VA examination was conducted. The veteran reported that his weight was 160 pounds before his stomach surgery. Examination revealed a weight of 135 pounds. The veteran had some complaints of nausea following meals and occasional diarrhea. Private hospital treatment records reveal that the veteran was hospitalized from August 18 to August 31, 1994 because of gastrointestinal bleeding. Surgical intervention was required and another partial gastrectomy was conducted. Subsequent private medical records show follow-up and treatment for the veteran's gastrointestinal symptoms. An April 1995 treatment record notes that the veteran had anemia and epigastric pain. However, the veteran specifically denied having fever, chills, nausea, or vomiting. He did report some fatigue; however, he also reported exercising that included walking 2 miles a day and lifting weights. The RO has obtained the veteran's private medical treatment records dating from August 1994 to November 1995, and on all relevant reports the veteran denied having nausea and vomiting. In October 1994, anemia and epigastric discomfort were noted and the veteran denied having nausea or vomiting. In April 1996 a VA examination of the veteran was conducted. The veteran reported that he continued to have symptoms of gastrointestinal pain and that he was treated with Gaviscon. Physical examination revealed that the veteran was well nourished and that his abdomen was tender. A July 1996 letter from a VA physician described the veteran's disability as "moderately severe post gastrectomy syndrome" which was manifested by chronic recurrent diarrhea. A September 1997 VA treatment note reveals that the veteran required medical treatment with Tagamet and Gaviscon. He weighed 169 pounds. A June 1998 VA treatment note reveals that the veteran's "health is OK except for some slight intermittent increment in bowel gasses. Denies any abdominal cramps, diarrhea, or constipation." In April 1999 the most recent VA examination of the veteran was conducted. The veteran reported having bile regurgitation and heartburn. He reported that this required him to sleep with his upper body elevated and that it still interrupted his sleep. He also reported upper right abdominal quadrant discomfort. He reported taking Gaviscon and maintaining a bland diet. The veteran's weight was 171 pounds. Physical examination revealed some abdominal tenderness. The impression was bile reflux gastritis and bile reflux into the esophagus, subtotal gastrostomy with Billroth II anastomosis, and diarrhea. Private medical records reveal that a colonoscopy was conducted in May 1999. There was no evidence of bleeding although some polyps and internal hemorrhoids were noted. The veteran's representative asserts that this is related to his service connected gastrectomy. However, the Board notes that there is no competent medical evidence of record indicating that the veteran's hemorrhoids and intestinal polyps, lower gastrointestinal disorders, are symptoms of the service connected residuals of a subtotal gastrectomy, an upper gastrointestinal disorder. The service connected post-operative residuals of a subtotal gastrectomy are currently rated as 40 percent disabling under diagnostic code 7308. That rating contemplates moderate symptoms with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. A 60 percent rating, the highest rating assignable under this diagnostic code, contemplates severe symptoms associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. 38 C.F.R. Part 4, § 4.114, Diagnostic Code 7308 (1999). The Board notes that the veteran's service connected post- operative residuals of a subtotal gastrectomy have been rated as 40 percent disabling since 1957, as such, are protected at this level. In July 1996 the veteran submitted his substantive appeal on a VA Form 9. In his appeal he stated that the "Statement of the Case and Rating Decision state the veteran denied nausea, vomiting, fever, chills, and fatigue. Bowel movements were reported formed. This information is in error." The veteran went on to assert that he has abdominal pain, reflux, fever chills, and fatigue. He stated that that his weight dropped 7 pounds since the last VA examination. He asserted that he was never asked about his symptoms by the VA examiner. The Board finds these statements to be questionable at best. Not only do the various VA examination reports reveal a lack of fever, nausea, and vomiting, but both VA and private medical treatment records have also recorded identical findings. The veteran's assertions of weight loss are also unsupported. The medical evidence of record reveals that the veteran's weight was 160 pounds before his stomach surgery in 1957. Subsequently it dropped to 135 pounds in November 1957, but was noted to be 171 pounds on VA examination in 1999. The evidence is against an increased rating for the veteran's service connected post-operative residuals of a subtotal gastrectomy. The evidence of record reveals that the veteran suffers from diarrhea, heartburn, and reflux as residuals of his service connected subtotal gastrectomy. There is no objective medical evidence of the severe nausea, sweating, circulatory disturbance after meals, hypoglycemic symptoms, weight loss with malnutrition and/or anemia, which would warrant a higher rating. As such, the veteran does not meet the criteria for the next higher rating of 60 percent. The preponderance of the evidence is against the veteran's claim for an increased rating for the service connected post- operative residuals of a subtotal gastrectomy. ORDER An increased rating for the post-operative residuals of a subtotal gastrectomy is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals