BVA9503706 DOCKET NO. 91-35 263 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a duodenal ulcer, status post subtotal gastrectomy, with reflux esophagitis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Associate Counsel INTRODUCTION The veteran had active service from January 1952 to December 1953. This case was previously before the Board of Veterans' Appeals (Board) in December 1991. It was remanded at that time in order to afford the veteran due process. After completion of the requested developments, the case was returned to the Board. It was remanded again in August 1993 in order to obtain additional evidence and to afford the veteran a Department of Veterans Affairs (VA) examination. The regional office (RO) was also directed to consider the inferred issues of entitlement to service connection for reflux esophagitis and polyps of the colon as secondary conditions to the veteran's service-connected duodenal ulcer. A March 1994 rating decision granted the veteran service connection for reflux esophagitis. A separate evaluation was not assigned, and the reflux esophagitis was considered in evaluating the disability resulting from the service-connected duodenal ulcer. Service connection for polyps of the colon was denied. This issue was not appealed, and it is not before the Board for current consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the 20 percent evaluation currently assigned for his duodenal ulcer, status post subtotal gastrectomy, is inadequate to reflect its true level of severity. The veteran complains of nausea, diarrhea, and distress. He claims to have lost between 30 and 40 pounds immediately after his surgery, and to have regained this weight only through his own determination. He notes he is unable to enjoy eating because of the pain which follows meals. He states that he was unable to eat at work, and retired early in part due to his disability. He can have sudden attacks in which he needs to go to the rest room, and he notes that he has occasional incontinence. Finally, the veteran states that his disability affects his social life, and requires expensive medication. 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 claim for entitlement to an increased rating for a duodenal ulcer, status post subtotal gastrectomy, with reflux esophagitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The symptomatology associated with the veteran's duodenal ulcer is not productive of more than moderate disability, and the symptomatology associated with his postgastrectomy syndrome is productive of no more than mild disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for a duodenal ulcer, status post subtotal gastrectomy, with reflux esophagitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.114, Codes 7305, 7308 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. That is, we find that he has presented a claim which is 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 might assist the Board in reaching a decision. The record is complete, and no further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. The veteran was initially service connected for the postoperative residuals of a duodenal ulcer in a May 1964 rating decision, which evaluated his disability as 10 percent disabling. Evidence submitted as part of the current claim includes surgical records from 1965. These records show that the veteran underwent a subtotal gastrectomy in January 1965. He made a good recovery, and was released with a good prognosis. During the course of the current claim, a January 1991 rating decision increased the evaluation to the current 20 percent rating. The veteran appealed. Service connection for reflux esophagitis was granted during the course of the current claim in March 1994. This disorder was not evaluated separately, but was considered in evaluating the service-connected duodenal ulcer. 38 C.F.R. § 4.114. In order for the veteran to receive a 60 percent evaluation for his duodenal ulcer, the symptoms must be of a severe degree, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, manifestations of anemia, and weight loss productive of definite impairment of health. To receive a 40 percent evaluation, the symptoms must be shown to be moderately severe, as manifested by impairment of health with anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. Moderate disability productive of recurring episodes of severe symptoms two or three times a year averaging 10 days in duration, or with continuous moderate manifestations, would warrant a continuation of the 20 percent rating in effect. 38 C.F.R. § 4.114, Code 7305. The veteran may also be evaluated under the rating code for postgastrectomy syndrome. Severe postgastrectomy syndrome associated with nausea, sweating, circulatory disturbances after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia warrants a 60 percent rating. Moderate symptoms with less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss are to be assigned a 40 percent evaluation. Mild symptoms such as infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations warrant a continuation of the 20 percent evaluation. 38 C.F.R. § 4.114, Code 7308. Current medical evidence includes an August 1990 statement from Kathleen Alter, M.D. Dr. Alter indicated that the veteran experiences diarrhea after eating, as a result of his stomach resection. The veteran was afforded a VA examination in September 1990. He was noted to have a history of a perforation of a duodenal ulcer in 1963 and stomach resection in January 1965. He experienced symptoms of fullness, weakness, sweating, and diarrhea following meals. The veteran indicated that he would often rather go hungry than suffer the aftereffects of a meal. His diarrhea had recently begun to worsen. He also experienced nausea and dizziness shortly after eating certain foods. For the previous two years, the veteran had experienced some reflux of bile/acid into the esophagus with a choking sensation. This was relieved by medication. The veteran did not smoke, drink alcohol, or drink coffee. He was using Zantac, but not on a diet. The veteran experienced no recurrent pains, and was also noted to be status post colonoscopy/polypectomy in 1985. On examination, the veteran's abdomen was flat. Two surgical scars were noted. The diagnoses at the physical examination and the gastrointestinal examination included status post gastric resection for duodenal ulcer, mild intermittent postgastrectomy dumping syndrome which was not debilitating, and reflux esophagitis which was controlled by Zantac and not considered to be debilitating. The examiner was of the opinion that none of these conditions adversely affected the veteran's ability to work. Private treatment records from July 1990 to January 1992 are of record. The only complaint relevant to the disability at issue was of stomach pain after meals in May 1990. Other private hospital records from February 1993 show treatment for coronary artery disease, but are negative for treatment of the duodenal ulcer. A July 1993 pathology report notes a history of abdominal pain with post-gastrectomy stasis and bile gastritis. The veteran had esophagogastroduodenoscopy with biopsy. The diagnosis was marked active chronic gastritis with helicobacter- like organisms present. June 1993 VA X-ray studies show that the abdomen and the esophagus appeared normal. An X-ray study of the stomach revealed status-post subtotal gastrectomy with gastrojejunostomy. No marginal ulcer was demonstrated. The visualized jejunum was unremarkable. The veteran was afforded a VA examination in September 1993. He complained of some pain and gas in the lower abdomen, and occasional diarrhea. The veteran's current weight was 199 pounds, which was also his maximum weight during the previous year. There was no anemia, malnutrition, vomiting, hematemesis, melena, nausea, or abdominal disturbances. The veteran reported daily pain in the mid epigastric area. The diagnoses were residuals of a duodenal ulcer, residuals of a perforated duodenal ulcer, residuals of subtotal gastrectomy, reflex esophagitis, and chronic gastritis. The veteran was afforded additional VA examinations of the esophagus, intestine, and stomach in March 1994. His current weight was 201 pounds, and this was also reported to be his maximum weight for the previous year. There were definite reflux disturbances, and pain in the mid-epigastrium region up to his throat. The veteran reported having pain a few days every week for the entire year, but it was worse in the spring and fall. There was no anemia, disturbance of motility, obstruction, malnutrition, nausea, diarrhea, constipation, or bowel or abdominal disturbance. The examination was also negative for periodic vomiting or recurrent hematemesis or melena. The diagnoses were gastro-esophageal reflux, recurrent polyps, gastritis, residuals of duodenal ulcer, residuals of surgery for perforation of ulcer, and residuals of partial gastrectomy and vagotomy. The examiner stated that the reflux esophagitis was definitely related to the veteran's stomach disease, but a relationship between the ulcer and the polyps was doubtful. After careful consideration of the veteran's contentions and the evidence of record, the Board is unable to find that an increased rating is merited for the veteran's duodenal ulcer, status post subtotal gastrectomy, with reflux esophagitis. The evidence does not show that the veteran has the moderately severe symptoms required to receive a 40 percent evaluation under the rating code for duodenal ulcer. The veteran does not have anemia, and he has not experienced weight loss. The June 1993 VA examination and the March 1994 VA examination are both negative for malnutrition, and the veteran gained two pounds in the nine months between the examinations. There is no evidence that the veteran experiences incapacitating episodes. The evidence does reveal that the veteran reported esophageal reflux in September 1990. He has almost continuous moderate manifestations of his ulcer, as indicated by his reports of daily epigastric pain in June 1993 and epigastric pain with esophageal reflux several times a week in March 1994. The veteran's symptomatology more nearly resembles the criteria for a moderate disability, which warrants the 20 percent evaluation now in effect. 38 C.F.R. § 4.114, Code 7305. The evidence also does not indicate that an increased rating under the rating code for postgastrectomy syndrome can be granted. Although the March 1994 examination was negative for diarrhea, the veteran has frequently reported that he experiences diarrhea on a regular basis. However, there is no evidence of weight loss. The veteran reported nausea in September 1990, but there was no vomiting or nausea reported in September 1993 or March 1994. This symptomatology most nearly resembles the criteria for a mild disability, which is evaluated as 20 percent disabling. Therefore, an increased rating is not merited. 38 C.F.R. § 4.114, Code 7308. In reaching this decision, the Board has considered an extraschedular evaluation under 38 C.F.R. § 3.321, but marked interference with employment, frequent hospitalizations, or other evidence of an unusual disability picture has not been shown. There is no evidence of a recent hospitalization for the veteran's service-connected disability. The veteran argues that he recently retired, and states that this decision was in part due to his disability. He also notes that he refused to work overtime due to his disorder. However, the September 1990 VA examiner stated that none of the veteran's conditions adversely affected his ability to work. The veteran states that he was employed as a truck driver for many years, and the evidence does not show that he missed work as a result of his disability. Finally, the Board notes that the provisions of 38 C.F.R. § 4.7 have been considered, but the veteran's symptomatology does not more nearly approximate that of the next higher evaluation. ORDER Entitlement to an increased rating for duodenal ulcer, status post subtotal gastrectomy, with reflux esophagitis, is denied. J. U. JOHNSON 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.