BVA9505927 DOCKET NO. 93-11 169 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased evaluation for post-operative residuals of a ventral hernia, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for residuals of a subtotal gastrectomy, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and D. Caliva ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from September 1942 to August 1944. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an April 1992 rating decision of the Houston, Texas Regional Office (hereinafter "the RO") which, in pertinent part, confirmed and continued a 40 percent evaluation for post-operative residuals of a ventral hernia and a 20 percent evaluation for residuals of a subtotal gastrectomy. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to grant an evaluation in excess of 40 percent for post-operative residuals of a ventral hernia and in failing to grant an evaluation in excess of 20 percent for his residuals of a subtotal gastrectomy. The veteran contends, essentially, that his current symptomatology indicates that a higher disability evaluation is warranted for both disorders. 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(s). 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 a preponderance of the evidence is adverse to the veteran's claim for an increased evaluation for post-operative residuals of a ventral hernia and that the record supports the allowance of a 40 percent evaluation for the veteran's residuals of a subtotal gastrectomy. 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 veteran's incisional hernia residuals are present in the midline of a gastrectomy scar, upper portion, and are clearly not massive or manifested by severe diastasis of recti or extensive muscular destruction. 3. The veteran's residuals of a subtotal gastrectomy are productive of moderate postgastrectomy syndrome. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 40 percent for post-operative residuals of a ventral hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4 including 4.3, 4.7 and Diagnostic Code 7339 (1993). 2. The schedular criteria for a 40 percent evaluation for residuals of a subtotal gastrectomy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4 including 4.3, 4.7 and Diagnostic Code 7308 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not appropriate. I.. Post-Operative Residuals of a Ventral Hernia A. Historical Review The veteran's service medical records indicate that he was seen in May 1943 with gastritis. The veteran was hospitalized in June 1944 with a final diagnosis of a chronic duodenal ulcer, cause undetermined and again in July 1944 with essentially the same diagnosis. In September 1944, service connection was granted for a chronic duodenal ulcer. The veteran underwent a VA examination in February 1965. The examiner noted that the veteran had a history of a duodenal ulcer and had undergone a subtotal gastrectomy which was performed by a private physician. It was observed that the veteran had developed a tremendous incisional hernia which was to be repaired once the veteran lost weight. It was noted that examination of the veteran's abdomen revealed the presence of an upper midline incisional scar. There was a hernia of the entire incision, which measured 10 inches by 4 inches. There were no palpable masses or organs. There were no areas of muscular spasm, rigidity, or tenderness. The diagnoses were scar, post- operative, subtotal gastrectomy, healed and ventral hernia, post- operative, reducible. In February 1965, service connection was granted for a ventral hernia. A 40 percent disability evaluation was assigned. The veteran's ulcer disorder was recharacterized as subtotal gastrectomy with a 20 percent evaluation. B. Increased Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). A 40 percent evaluation is warranted for a large post-operative ventral hernia which is not well supported by a belt under ordinary conditions. A 100 percent evaluation requires a massive, persistent hernia with severe diastasis of the recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of the abdominal wall as to be inoperable. 38 C.F.R. Part 4, Diagnostic Code 7339 (1993). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if 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). A February 1989 treatment entry from the Kelsey-Seybold Clinic, Houston, Texas noted that physical examination of the veteran's abdomen revealed a well-healed surgical scar with no tenderness or guarding. An October 1991 VA hospital discharge summary indicated that as to the veteran's abdomen, there were normal bowel sounds present in all quadrants. There was no evidence of masses or tenderness. There was a midline well-healed scar with ventral hernia. The veteran underwent a VA examination in October 1992. The examiner reported that the veteran's abdomen was soft and benign. There was no organomegaly or remarkable tenderness noted. The incisional scar in the midline was noted to be a residual from the subtotal gastrectomy and cholecystectomy. The examiner noted there was an incisional hernia in the upper part of the scar. The examiner indicated diagnoses including peptic ulcer disease status post subtotal gastrectomy. At the November 1992 hearing on appeal, the veteran's wife testified that she did not know how the veteran's ventral hernia bothered him. She stated that it had always been there when he was heavy and that there was less of it since the veteran had lost weight. She indicated that the veteran did have a small inside hernia that floated around for a long time and that he was aware that it was there. The Board has made a careful longitudinal review of the record. It is observed that a February 1989 treatment entry from the Kelsey-Seybold clinic indicated that the veteran had a well- healed surgical scar with no tenderness or guarding. An October 1991 VA hospital discharge summary noted that examination of the veteran's abdomen revealed a well-healed scar with ventral hernia. The October 1992 VA examination report related that the veteran's abdomen was soft and benign with no organomegaly or remarkable tenderness noted. There was an incisional hernia in the upper part of the veteran's midline incisional scar. The Board further observes that the veteran's wife testified that she did not know if the veteran's hernia bothered him. In the absence of clinical evidence showing more than a large post- operative ventral hernia not well supported by a belt under ordinary conditions, the Board finds that the present 40 percent disability evaluation satisfactorily reflects the veteran's present level of disability. Clearly the hernia is not massive with severe diastasis of recti muscles or extensive destruction of muscles as to warrant additional compensation. Accordingly, an increased evaluation for post-operative residuals of a ventral hernia is not warranted. We have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1993), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, we find that the evidence does not suggest that the veteran's post-operative residuals of a ventral hernia are productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standards and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). II. Residuals of Subtotal Gastrectomy A. Historical Review The veteran's service medical records indicate that he was seen in May 1943 with gastritis. The veteran was hospitalized in June 1944 with a final diagnosis of a chronic duodenal ulcer, cause undetermined. The veteran was hospitalized again in July 1944 and was also diagnosed with a chronic ulcer of the duodenum. In September 1944, service connection was granted for a chronic duodenal ulcer. A 30 percent evaluation was assigned. The veteran underwent a VA examination in December 1947. The examiner diagnosed an active mild duodenal ulcer. In February 1948, the veteran's disability evaluation was reduced to 20 percent. A December 1950 VA examination report indicated a diagnosis of an active duodenal ulcer with questionable active ulceration in the antral region of the stomach on the posterior wall of the antrum near the pyloric sphincter. The veteran underwent a VA examination in May 1959. The diagnosis was deformity of the duodenal bulb, secondary to old duodenal ulcer. A December 1959 rating decision reduced the disability evaluation for the veteran's duodenal ulcer from 20 percent to 10 percent. A February 1962 VA examination report indicated a diagnosis of history of duodenal ulcer. The veteran underwent a VA examination in February 1965. The examiner noted that the veteran had a history of a duodenal ulcer and had undergone a subtotal gastrectomy which was performed by a private physician. The veteran's appetite was fairly good, he had occasional nausea, regular bowel movements and infrequent vomiting. The diagnoses were scar, post-operative, subtotal gastrectomy, healed and ventral hernia, post-operative, reducible. In February 1965, service connection was granted for a ventral hernia. A 40 percent disability evaluation was assigned. The veteran's ulcer disorder was recharacterized as subtotal gastrectomy and assigned a 20 percent evaluation which has remained in effect. B. Increased Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). 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 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, Diagnostic Code 7308 (1993). A February 1989 treatment entry from the Kelsey-Seybold Clinic indicated that the veteran had a history of undergoing a gastrectomy, vagotomy and cholecystectomy. The veteran had burning right subcostal discomfort for many years recurring on a daily basis which had been relieved by antacids. The diagnosis was acid dyspepsia. An October 1991 VA hospital discharge summary indicated that the veteran had a past surgical history which included a bleeding duodenal ulcer which required a partial gastrectomy and a cholecystectomy. As to the veteran's abdomen, there were normal bowel sounds present in all quadrants and there was no evidence of masses or tenderness. The veteran underwent a VA examination in October 1992. The veteran's wife reported that the veteran occasionally complained of gastric pain in the right upper quadrant usually after eating. She indicated that she did not believe the veteran had nausea or vomiting. She also related that the veteran complained of excessive gas and that he had frequent diarrhea with no blood in his stool. The veteran's wife reported that she believed that the veteran's digestive problems had worsened and that he had lost a lot of weight. The examiner noted that the veteran weighed 148 pounds. The abdomen was soft and benign with no organomegaly or remarkable tenderness. There was an incisional scar in the midline which was a residual from the subtotal gastrectomy and cholecystectomy. The examiner diagnosed peptic ulcer disease status post subtotal gastrectomy. At the November 1992 hearing on appeal, the veteran's wife testified that the veteran started losing weight in 1990 and his weight loss had been gradual. She indicated that he used to weigh 186 to 188 pounds and that he was presently down to 148 pounds. She stated that she did not know if the veteran's weight loss was related to his stomach problems and that physicians had not indicated that it was. It was reported that the veteran would complain of gastric problems about every three weeks. She indicated he would complain of burning which would be relieved by eating, drinking mild or Tums. She stated that the veteran did have diarrhea although she said it was hard to determine how often. The Board has made a careful longitudinal review of the record. It is observed that a February 1989 private treatment entry indicated that the veteran complained of burning right subcostal discomfort. The October 1992 VA examination report noted that the veteran's wife reported that he had occasional gastric pain after eating with no nausea or vomiting. She also indicated that the veteran had frequent diarrhea and complained of excessive gas.. The examiner diagnosed peptic ulcer disease status post subtotal gastrectomy. Further, the Board observes that the veteran's wife testified that he had gradually lost approximately 40 pounds since 1990, although physicians had not indicated that this was due to his gastrointestinal disorder. She also indicated that he had diarrhea, but did not know how often. The Board observes that the clinical evidence of record and the testimony on appeal indicates that the veteran has occasional gastric pain after eating, has diarrhea, and has suffered an approximately 40 pound weight loss since 1990. No circulatory symptoms, nausea, hypoglycemic symptoms, malnutrition or anemia have been shown. In consideration of the provisions of 38 C.F.R. § 4.7 (1993), the Board finds that the clinical evidence of record indicates symptomatology productive of moderate postgastrectomy syndrome. Accordingly, the Board concludes that a 40 percent evaluation is warranted for the veteran's residuals of a subtotal gastrectomy. We have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1993), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, we find that the evidence does not suggest that the veteran's residuals of a subtotal gastrectomy are productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standards and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). ORDER An increased evaluation for post-operative residuals of a ventral hernia is denied. A 40 percent evaluation is granted for residuals of a subtotal gastrectomy subject to the laws and regulations governing the award of monetary benefits. E. W. SEERY 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.