Citation Nr: 0005887 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-14 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased disability evaluation for peptic ulcer disease with highly selective parietal cell vagotomy residuals, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and the veteran's wife ATTORNEY FOR THE BOARD John T. Hutcheson, Counsel INTRODUCTION The veteran had active service from August 1963 to September 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 1994 rating decision of the New Orleans, Louisiana, Regional Office (RO) which, in pertinent part, denied an increased disability evaluation for the veteran's service-connected peptic ulcer disease with highly selective parietal cell vagotomy residuals. In December 1997, the veteran was afforded a hearing before a Member of the Board sitting at the RO. In June 1998, the veteran was informed that the Member of the Board who conducted the December 1997 hearing was unable to participate further in his appeal due to an extended illness and he therefore had the right to an additional hearing before a different Member of the Board. In July 1998, the veteran informed the Board that he did not desire an additional hearing. In July 1998, the Board remanded the veteran's appeal for additional development of the record. The veteran has been represented throughout this appeal by the Disabled American Veterans. Preliminary review of the record does not reveal that the RO expressly considered referral of the veteran's claim for an increased evaluation for his gastrointestinal disability to the Department of Veterans Affairs (VA) Undersecretary for Benefits or the Director, VA Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). That regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Undersecretary for Benefits or the Director, VA Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). 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 post-operative gastrointestinal disability has been shown to be productive of no more than chronic indigestion, epigastric burning and tenderness, and an inability to eat during the day. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for peptic ulcer disease with highly selective parietal cell vagotomy residuals have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7348 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if 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 VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is plausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. I. Historical Review The veteran's service medical records indicate that he was diagnosed with active peptic ulcer disease. The report of a January 1986 VA examination for compensation purposes notes that the veteran weighed 223 pounds and was diagnosed with a history of peptic ulcer disease. In February 1986, the Waco, Texas, Regional Office established service connection for peptic ulcer disease and assigned a 10 percent evaluation for that disability. A May 1990 VA hospital summary relates that the veteran was admitted for treatment of peptic ulcer disease and an upper gastrointestinal bleed. The veteran subsequently underwent a highly selective parietal cell vagotomy. In October 1990, the RO recharacterized the veteran's service-connected gastrointestinal disability as peptic ulcer disease with highly selective parietal cell vagotomy residuals evaluated as 20 percent disabling. II. Increased Evaluation Disability evaluations are determined by comparing the veteran's current 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 (1999). A 20 percent disability evaluation is warranted for a moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging ten days in duration or with continuous moderate manifestations. A 40 percent evaluation requires a moderately severe duodenal ulcer with less than severe symptoms where the disability is shown to be productive of an impairment of health manifested by anemia and weight loss or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. 38 C.F.R. § 4.114, Diagnostic Code 7305 (1999). A recurrent ulcer with an incomplete vagotomy with pyloroplasty or gastroenterostomy warrants a 20 percent evaluation. A 30 percent evaluation requires symptoms and a confirmed diagnosis of alkaline gastritis or of confirmed persisting diarrhea. A 40 percent evaluation requires demonstrably confirmative post-operative complications of stricture or of continuing gastric retention. 38 C.F.R. § 4.114, Diagnostic Code 7348 (1999). Evaluations assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher evaluation when the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114 (1999). At a November 1992 VA examination for compensation purposes, the veteran complained of intermittent pyrosis with burning epigastric and substernal discomfort. He denied experiencing anorexia, weight loss, periodic vomiting, hematemesis, melena, gaseous distention, flatulence, and belching. The veteran was reported to weigh 241 pounds. On examination, the veteran exhibited a well-healed mid-line epigastric surgical scar and an "otherwise normal" abdomen. A contemporaneous upper gastrointestinal series noted slight hypertrophy of the antral mucosa and no evidence of ulceration or filling defect. The VA physician commented that the findings possibly represented "low grade antral gastritis." The veteran was diagnosed with chronic peptic ulcer disease by history, highly selective parietal cell vagotomy residuals, and questionable low grade hypertrophic antral gastritis. An August 1994 VA treatment record states that the veteran complained of gastrointestinal distress, diarrhea, and epigastric burning. On examination, the veteran exhibited minor tenderness over his entire abdomen and "symptoms of dumping syndrome." An impression of "poss[ible peptic ulcer disease] - dumping syndrome" was advanced. A September 1994 VA treatment record conveys that the veteran reported that his gastrointestinal symptoms were "somewhat better." An impression of gastritis was advanced. An October 1994 VA treatment record notes that the veteran reported considerable relief from his gastrointestinal symptoms secondary to his prescribed medication. An impression of dumping syndrome was advanced. A July 1995 VA treatment record states that the veteran related that his gastrointestinal symptomatology was stable. A diagnostic impression of "gastritis [versus peptic ulcer disease]" was advanced. In his November 1995 notice of disagreement, the veteran reported that he took medication for his gastrointestinal disability on a daily basis. In his February 1996 substantive appeal, the veteran clarified that he had been prescribed medication for chronic indigestion. He advanced that he could not eat during the day due to his indigestion. His inability to eat during the day interfered with his employment. A May 1996 VA treatment record states that the veteran complained of belching and "acid." On examination, the veteran weighed 250 pounds and exhibited no abdominal tenderness. An impression of "ugi-gastritis" was advanced. At the December 1997 hearing before a Member of the Board, the veteran testified that he experienced chronic indigestion for which he took medication, weight fluctuations, occasional spitting up or vomiting once every month or two, an inability to eat during the day, and occasional reflux. He advanced that his prescribed medication aggravated his gastrointestinal disability. The veteran's wife testified that the veteran did not eat during the day in order to avoid an exacerbation of his gastrointestinal symptoms. She clarified that when the veteran ate during the day, he experienced severe indigestion and belching. A January 1998 VA treatment record states that the veteran weighed 256 pounds. A May 1998 VA treatment record indicates that the veteran complained of chronic indigestion. He stated that his prescribed medication helped control his symptoms. The veteran was reported to weigh 247 pounds. At a February 1999 VA examination for compensation purposes, the veteran complained of pain after eating; burning epigastric pain; episodic nausea once or twice a week; and episodic stomach pain two to three times a month which was exacerbated by eating and relieved by Omeprazole, an ulcer medication. He reported a 10 pound weight gain and denied experiencing diarrhea, constipation, and vomiting. On examination, the veteran exhibited epigastric tenderness. A contemporaneous upper gastrointestinal series was reported to be suggestive of an active duodenal ulcer with post-bulbar spasm. The veteran was diagnosed with "chronic peptic ulcer disease, status post high selective parietal cell vagotomy." In a September 1999 written statement, the veteran advanced that he experienced chronic indigestion; an inability to eat during the day secondary to his chronic indigestion; and improper emptying of his stomach. He clarified that his reported 10 pound weight gain was a consequence of his eating only at night. In his November 1999 Written Brief of Arguments, the national accredited representative asserted that: The veteran has chronic indigestion and abdominal pain. He is unable to eat during the day and the types of food he is able to eat which cause the minimum discomfort are not always foods that are consistent with optimal health and weight management. The Board has reviewed the probative evidence of record including the veteran's testimony and statements on appeal. The veteran's service-connected post-operative gastrointestinal disability has been shown to be manifested by significant chronic symptoms including indigestion, epigastric burning and tenderness, and an inability to eat during the day. The veteran has acknowledged that he has gained weight. Given the nature of his chronic symptoms, the Board finds that Diagnostic Code 7348 reflects the veteran's predominant disability picture. The clinical findings do not reflect that the veteran's gastrointestinal disability is productive of either an impairment of health manifested by anemia and weight loss; recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year; a confirmed diagnosis of alkaline gastritis; or a diagnosis of confirmed persisting diarrhea. In the absence of such findings, the Board concludes that the current 20 percent evaluation adequately reflects the veteran's service-connected gastrointestinal disability picture. The Board further concludes the severity of the veteran's overall gastrointestinal disability does not warrant elevation of the current evaluation to 30 percent. 38 C.F.R. § 4.114, Diagnostic Codes 7305, 7348 (1999). The Board is aware that the veteran's weight has fluctuated during the appeal period. However, minor weight loss or greater losses of weight for periods of brief duration are not considered of importance in rating. Rather, weight loss becomes of importance where there is appreciable loss which is sustained over a period of time. In evaluating weight loss generally, consideration will be given not only to standard age, height, and weight tables, but also to the particular individual's predominant weight pattern as reflected by the records. The use of the term "inability to gain weight" indicates that there has been a significant weight loss with inability to regain it despite appropriate therapy. 38 C.F.R. § 4.112 (1999). Based on the record, the veteran's weight fluctuations have been minor. The veteran has also indicated that his inability to eat during the day interfered with employment. However, the 20 percent evaluation contemplates some interference with earning capacity. 38 C.F.R. § 4.1 (1999). Regardless, the veteran has not clearly established the nature of the interference and has not alleged that there has been marked interference with employment. 38 C.F.R. § 3.321 (1999). The veteran's allegation that he is worse established a well grounded claim. The VA's duty to assist was recognized and examinations were conducted. We conclude that the observations of numerous professionals are more probative of the degree of impairment than the veteran's lay opinion. The preponderance of the evidence is against the claim and there is no doubt to be resolved. ORDER An increased evaluation for peptic ulcer disease with highly selective parietal cell vagotomy residuals is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals