BVA9500093 DOCKET NO. 93-05 502 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to restoration of a 20 percent rating for duodenal ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active service from June 1943 to January 1945. This matter comes before the Board of Veterans' Appeals ( the Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Portland, Oregon, Regional Office (RO) which reduced the evaluation assigned for duodenal ulcer from 20 percent disabling to a noncompensable evaluation, effective in November 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he continues to be treated and prescribed medication for duodenal ulcer disease and that a VA physician found active ulcer disease in July 1991. VA has given him medication for his pain because it was for a service- connected disability. In July 1991 he was hospitalized and was not given a diagnosis of gallbladder disease. Since gallbladder disease was not conclusively diagnosed, part of his abdominal pain was due to ulcer disease, and reasonable doubt should be resolved in his favor. 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 claim for restoration of a 20 percent rating or a compensable rating for duodenal ulcer. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service connected duodenal ulcer disease is not currently active and does not recur once or twice yearly. 3. There has been an improvement in the symptomatology associated with the veteran's service-connected duodenal ulcer disease. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating or a compensable rating for the veteran's service-connected duodenal ulcer disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 3.344, Part 4, §§ 4.31, 4.114, Diagnostic Code 7305 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's assertion that his service-connected disability has increased in severity constitutes a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a), requiring VA to fulfill the statutory duty to assist the veteran in developing all facts relevant to the claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The evidence on file includes service medical records, x-ray findings, VA examinations and hospitalizations and records of current VA treatment for the veteran's multiple disabilities, including gastrointestinal complaints. This evidence is sufficient in scope and depth for a fair, impartial, and fully informed appellate decision and the duty to assist has been fulfilled. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Where, as in this case, entitlement to service connection has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). The service medical records indicate that the veteran was discharged from service by reason of a chronic active duodenal ulcer, and in January 1945 the RO granted service connection for duodenal ulcer, rated as 30 percent disabling. Subsequent rating actions raised the rating to 40 percent in 1946, then reduced the rating to 20 percent in 1947 and to 10 percent in 1953 and raised it to 20 percent later in 1953. VA examination in September 1961 demonstrated a mild duodenal deformity with no active ulcer on upper gastrointestinal series (UGI) and abdominal tenderness on physical examination. By rating action in November 1961 the RO reduced the rating to 10 percent. In 1962 the rating was further reduced to noncompensable after an October 1961 VA examination showed no active ulcer on UGI and no evidence of abdominal pain on physical examination. Based on a report of VA hospitalization for treatment of duodenal ulcer, the RO increased the rating to 10 percent after termination of a temporary total hospitalization rating in May 1973. In a rating action in January 1990 the RO noted a July 1989 VA UGI deformity of the duodenal bulb and indications suggestive of a small ulcer crater. Possible gastric ulcer was diagnosed on a November 1989 VA examination, but UGI in December 1989 showed no evidence of ulcer disease. The RO increased the rating to 20 percent effective in August 1989. Reports of VA hospitalization in 1989 and 1990 show treatment for multiple disabilities including arteriosclerotic heart disease with angina and congestive heart failure, noninsulin dependent diabetes mellitus, urinary tract infection and chronic obstructive pulmonary disease. A history of peptic ulcer disease was noted in October 1989. During hospitalization in May 1990 it was noted that his peptic ulcer disease had not been a major problem and that there had been no major change in the disease. On subsequent hospitalization in May and June 1990 peptic ulcer disease with deformity and scarring of the duodenal cap was diagnosed along with multiple other diagnoses, but he was treated primarily for a urinary tract infection. He was also placed on a diet at that time. Complaints of chronic abdominal pain and constipation were made on hospitalization in December 1990, and treatment was given for out-of-control diabetes. It was noted that his diabetes has been fairly easily controlled on medication and diet, but that recently glucose had been increasing. There were no findings of peptic ulcer disease and peptic ulcer was diagnosed by history only. Similarly, there were no findings of ulcer disease made during a brief hospitalization in February 1991. The diagnoses during several periods of hospitalization noted above included cholelithiasis, or gallstones. The veteran was admitted to the VA hospital in July 1991 with complaints of chest pain, diagnosed as angina. He also reported that more recently his stomach felt as though his ulcer was reactivated with epigastric pain and increased belching and flatulence. Active peptic ulcer disease was diagnosed, but it does not appear that a UGI was performed; the UGI was to be done on a postdischarge outpatient basis. Thereafter, in August 1991 a VA UGI reflected findings consistent with presbyesophagus and hiatal hernia, but there was no evident duodenal ulcer. The veteran underwent VA examination in August 1991 at which time he complained of stomach soreness and nausea after eating. He also stated that his stomach was not emptying. He weighed 199 pounds. On physical examination the abdomen was distended and tympanic. There was diffuse tenderness in the right upper quadrant. History of peptic ulcer disease was diagnosed. Laboratory studies showed minimally decreased hematocrit and normal hemoglobin. A UGI showed hiatal hernia but no findings of peptic ulcer. Thereafter, the RO proposed reduction of the rating assigned from 20 percent to noncompensable. Reports of multiple periods of VA hospitalization from December 1991 to October 1992 show no evidence of active ulcer, and when diagnosed, peptic ulcer disease was diagnosed by history only. On hospitalization in February 1992 he complained of nausea, anorexia, abdominal cramps and diarrhea after taking medication for his heart disease. During this hospitalization ultrasound study showed sludge in the gallbladder with cholelithiasis. VA outpatient treatment reports of 1991 and 1992 show treatment for multiple nonservice-connected disabilities. The veteran's weight ranged from 198 pounds to 180 pounds in June and August 1992. 38 C.F.R. Part 4, § 4.114, Diagnostic Code (DC) 7305 provides a 10 percent rating for mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent rating is provided for moderate peptic ulcer with recurrent episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations. Where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no-percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. The Board has considered the veteran's contention that his disability rating is protected because it has been in effect for more than 10 years. However, this is a misinterpretation of the laws and regulations. Service connection which has been in effect for 10 or more years shall not be severed except under certain stated conditions not applicable here. 38 U.S.C.A. § 1159; 38 C.F.R. § 3.957 (West 1991). There has been no proposal to sever service connection for duodenal ulcer in this case. The RO has reduced the evaluation to noncompensable but has not severed service connection. Should the disability increase in severity in the future the rating could again be increased, a possibility that would not apply had service connection been severed. 38 U.S.C.A. § 110; 38 C.F.R. § 3.951 (West 1991), provides for the protection of disability ratings, but only after such rating has been in effect for 20 or more years. Although the veteran's ulcer disease has been rated at a compensable level for many years, it has not been so rated for a period of 20 or more years, having been reduced to noncompensable approximately 19 1/2 years after the 10 percent rating was assigned in 1973. Thus, he does not have a protected disability rating. The 20 percent rating for duodenal ulcer was in effect for approximately 3 2/3 years prior to the reduction in November 1992, and the provisions of 38 C.F.R. § 3.344 are not for application. That regulation provides that in order to produce stability of evaluations, it is essential that the entire record of examinations and medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis for reduction. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated and it is reasonably clear that the improvement will be maintained under the ordinary conditions of life. These provisions apply to ratings which have continued for long periods at the same level (5 years or more). 38 C.F.R. § 3.344(a), (b). While the 20 percent rating has not been in effect for essentially 5 years, the included 10 percent rating has been in effect for many more years, and the above regulation will be considered in determining the propriety of the reduction effectuated by the RO. The RO reduced the rating on the basis that there was no active ulcer disease shown, a determination which implicitly includes a finding of improvement in the condition, particularly since the 10 percent rating was assigned in 1973 on the basis of treatment for an active duodenal ulcer. Except for the suspicion of active ulcer, diagnosed as active peptic ulcer disease in July 1991, there have been no findings of active ulcer on any of the medical records in 1991 or 1992. Moreover, that diagnosis is questionable since it does not appear to have been based on appropriate diagnostic study such as UGI, but rather the subsequent outpatient UGI in August 1991 showed no evidence of duodenal ulcer; the later UGI in August 1991 was in agreement with the lack of findings of ulcer disease. Contrary to the veteran's assertions that there was no diagnosis of gallbladder disease and, therefore, his symptoms must be due to ulcer, the record shows many diagnoses of cholelithiasis, gallstones, and cholecystitis. Diagnostic studies during hospitalization in February 1992 did show gallbladder disease. Moreover, his abdominal symptoms have also been attributed to reaction to medication, and except for the one occasion of hospitalization in July 1992, his gastrointestinal complaints have not been medically attributed to ulcer disease on any of the more recent medical records, including outpatient and inpatient records and examination in August 1991. Again, it is noted that the diagnosis in July 1991 is questionable. The evidence demonstrates a material, sustained improvement in the veteran's ulcer disease to the point that it is no longer active or symptomatic. This lack of symptoms or findings pertaining to ulcer disease has persisted for a period of time sufficient to conclude that it is sustained so as to warrant the reduction to a noncompensable evaluation. The determination is based not only on one examination but on numerous medical reports and several diagnostic studies. The evidence does not show even mild duodenal ulcer and symptoms attributable to ulcer disease have not recurred once or twice yearly over the period from 1991 to 1992. He has lost weight, but he was also placed on a diet apparently for control of diabetes. There are apparently other causes for the veteran's gastrointestinal complaints, including megacolon, cholelithiases, cholecystitis, hiatal hernia and reaction to medication. However, symptoms of these diseases cannot be considered in rating the service-connected ulcer disease. The Board concludes that the reduction in rating effectuated by the RO was proper and that restoration of either a 20 percent rating or 10 percent rating is not warranted. The evidence does not show an unusual disability picture which would render the application of the regular schedular standards inappropriate. The frequent hospitalizations undergone by the veteran have not been for treatment of ulcer disease, not has it been shown that this disease markedly interferes with his employment. He has multiple nonservice-connected disabilities far more disabling that his ulcer disease. The preponderance of the evidence is against this claim and there is no doubt to be resolved. (CONTINUED ON NEXT PAGE) ORDER Restoration of a 10 percent or 20 percent rating for duodenal ulcer is denied. HOLLY E. MOEHLMANN 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.