BVA9502925 DOCKET NO. 93-04 988 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to the restoration of a 40 percent evaluation for postgastrectomy syndrome and to a rating in excess of 40 percent for that disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. M. Flatley, Counsel INTRODUCTION The veteran had active service from April 1971 to April 1974 and from April 1975 to April 1979. Entitlement to service connection for duodenal ulcer, postoperative subtotal gastrectomy, was granted by an August 1980 rating decision; and a 40 percent evaluation was assigned, effective April 1979. By a December 1991 rating decision, the 40 percent rating was reduced to 20 percent, effective March 1, 1992; this appeal ensued. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that there has been no change in his clinical symptoms from the initial assignment of a 40 percent evaluation in 1980. He maintains that the 40 percent disability evaluation has been in effect for more than 10 years and therefore cannot be reduced. The veteran's representative contends that the veteran's condition has not improved and that the 40 percent evaluation should be restored. DECISION OF THE BOARD The Board of Veterans' Appeals (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 evidence supports restoration of a 40 percent disability evaluation for postgastrectomy syndrome but that the preponderance of the evidence is against a rating exceeding 40 percent. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO). 2. The veteran's duodenal ulcer, postoperative subtotal gastrectomy, is manifested by symptoms including diarrhea 2 to 5 times per day and lightheadedness, occurring once or twice a week and resolved by eating; it is reasonably shown to have remained moderate in degree. 3. The postgastrectomy syndrome is not shown to produce severe impairment. CONCLUSION OF LAW Restoration of a 40 percent disability evaluation for duodenal ulcer, postoperative subtotal gastrectomy, is warranted; but a rating in excess of 40 percent is not. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.344, 4.1, 4.114, and Part 4, Diagnostic Code 7308 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the law and judicial construction. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990). The Department of Veterans Affairs (VA), therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. Upon review of the record, the Board concludes that all available relevant data have been obtained for determining the merits of the veteran's claim, including statements submitted by the veteran, the veteran's service medical records, reports of VA examinations, and post-service private medical reports. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts pertinent to his case. 38 U.S.C.A. § 5107(a). I. Pertinent Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. Ratings under Diagnostic Codes 7301-7329, inclusive, 7331, 7342, and 7345-7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the Diagnostic Code which reflects the predominant disability picture. 38 C.F.R. § 4.114 (1993). A 20 percent evaluation for postgastrectomy syndrome reflects mild impairment manifested by infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. 38 C.F.R. Part 4, § 4.114, Diagnostic Code 7308. A 40 percent evaluation, the next higher rating and that which was in effect prior to the reduction at issue, is commensurate with moderate impairment, manifested by less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss. Id. A maximum 60 percent evaluation is warranted if the postgastrectomy syndrome is severe, associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia. Id. In assessing the merits of a claim, the Secretary is responsible for determining whether the preponderance of the evidence is against the veteran's claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or in equal balance, the claimant prevails. Id. II. Duodenal Ulcer, Postoperative Subtotal Gastrectomy The veteran's service medical records show that in November 1973, he was hospitalized for complaints of epigastric pain and hematemesis after drinking alcohol; he was hospitalized with upper gastrointestinal bleeding. Hospitalization led to discharge diagnoses of duodenal ulcer with hemorrhage, treated, improved, and esophagogastritis, probably ethanol-induced, treated, improved. No pertinent findings were noted on examination in January 1974 for separation from the veteran's first period of active service. Service medical records associated with the veteran's second period of active service show that he sought treatment in 1975 for vomiting blood. A September 1976 entry reflects the presence of a bleeding duodenal ulcer; as a result, the veteran underwent a vagotomy, hemigastrectomy with Billroth II procedure, and a gastrojejunostomy. The medical record shows that two months after the surgery, the veteran was doing well. A February 1977 entry shows that the veteran reported no problem with diarrhea and at that time his weight was stable at 170 pounds. In the report of an examination conducted in July 1977, the veteran reported that he had been treated for peptic ulcer, but was at that time in good health. On service separation examination in March 1979, the veteran stated that he was in good health; no pertinent abnormalities were recorded. The veteran was noted to be 5 feet 9 1/2-inches tall and weighed 168 pounds. On VA examination in June 1980, it was noted that the veteran was 5 feet 11 inches tall and weighed 154 pounds. His symptomatology included occasional diarrhea and a feeling of weakness and tympanism after a meal, particularly if he ate sweets. He stated that he had no vomiting, hematemesis, or melena since the surgery in 1976, and reported that he had no "problems" related to his stomach. A medium abdominal surgical scar was noted on examination; no tenderness, enlarged organs, masses, or ascites, were found. An upper gastrointestinal study revealed no evidence of marginal ulcer and the stomach emptied satisfactorily. Consistent with upper gastrointestinal study results, the diagnosis was subtotal gastrectomy with Billroth II procedure and vagotomy. Based on the aforementioned findings, and as noted above, service connection for duodenal ulcer, postoperative subtotal gastrectomy, was granted by an August 1980 rating decision; and a 40 percent evaluation was assigned, effective April 1979. The report of a VA examination conducted in August 1982 indicates that the veteran had not received any medical treatment since the previous VA examination. It was noted that the veteran was 5 feet 9 inches tall and weighed 170 pounds. He reported having diarrhea, nausea, vomiting, and dizziness. On examination, the physician found no tenderness, masses, or organomegaly. An upper gastrointestinal series study revealed a 3-millimeter marginal ulcer, small irregular filling defects, and slowed gastric emptying. The diagnosis was marginal ulcer area of anastomosis. Essentially similar clinical findings were made on VA examination conducted in February 1984; no symptoms were reported. An upper gastrointestinal series revealed a mass of jejunal segments distal to the gastrojejunostomy with possible peri-intestinal adhesions of the jejunum; the mass was noted to be similar to that which was present on x-ray study in August 1982. No evidence of ulceration or narrowing of the gastrojejunal anastomosis was shown. The diagnoses were residuals of subtotal gastric resection with peri-intestinal adhesions by X-ray and dumping syndrome. On a VA examination conducted in February 1986, the veteran reported having diarrhea two to five times per day and noted that his weight fluctuated. He noted that he did not have "much pain." At that time, his height was recorded at 5 feet 9 1/2-inches and he weighed 161 pounds. Physical examination revealed no acute tenderness and no mass. An upper gastrointestinal series revealed normal emptying and a normal gastric pouch; the gastrojejunostomy and anastomosis were unremarkable and no peptic ulcer was present. The possibility of a small sliding hiatal hernia was noted. Although reduction of the evaluation in effect for the veteran's duodenal ulcer, post-operative subtotal gastrectomy, was contemplated by an April 1986 rating decision, the 40 percent evaluation was maintained by a June 1986 rating decision based on a May 1986 statement by Tom Martin, M.D., that the veteran continued to experi-ence dumping syndrome and that there had been no appreciable clinical changes in his symptoms in the past seven years. On VA examination in May 1988, the physician noted the veteran's complaint that since the surgery in 1976 he had experienced nausea when eating sweets, nervousness, and diarrhea; he also noted that he became "jittery at times." His height was 5 feet 9 inches and he weighed 158 pounds. On examination, there was no hepato-splenomegaly, tenderness, or varicosities. An upper gastrointestinal series revealed normal transit into the stomach and no abnormality of the small bowel. No obstructive change or ulcer was demonstrated. The radiographic diagnosis was postoperative stomach, otherwise unremarkable. The diagnosis was history of bleeding duodenal ulcer, status-post vagotomy and subtotal gastrectomy with possible dumping syndrome complication. On August 1991 VA examination, the veteran's height was recorded as 5 feet 11 inches; and he weighed approximately 177 pounds. The veteran reported that he experienced diarrhea four to five times daily and weak spells of "hypoglycemia" when he must eat something. He reported a history of frequent loose stools and occasional early dumping, without gastrointestinal bleeding, since his 1976 surgery. The veteran's use of over-the-counter products to alleviate his symptoms was noted. Physical examination revealed a supple abdomen with no organomegaly. Findings on upper gastrointestinal series included mild ectasis of the proximal loops of the jejunum, reflecting long-standing process with rapid gastric emptying; the radiographic impression was re-demonstration of Billroth II gastrojejunostomy with subtotal gastric resection and with well functioning stoma and without evidence of ulcer disease or other abnormality. The gastrointestinal diagnosis was status-post partial gastrectomy with post-vagotomy diarrhea and early dumping. By a September 1991 rating decision, a reduction of the evaluation to 20 percent was proposed for the veteran's duodenal ulcer, post-operative. In response to the proposal to reduce the disability evaluation, a report of an evaluation conducted in October 1991 by Dennis Guletz, M.D., was submitted. After reviewing the veteran's history, Dr. Guletz noted the veteran's complaints of loose stools 2 to 5 five times per day and a "shaky" and "lightheaded" feeling once or twice a week, resolved by eating. It was noted that the veteran tended to eat frequent small meals, but was not on a particular dumping diet. The use of over-the-counter products as needed was noted. Examination revealed unremarkable findings; the abdomen was soft and non-tender, and stools were hemoccult negative. The veteran's weight was 176 pounds. Dr. Guletz commented that the veteran appeared to have mild dumping and suggested ways in which he could alleviate his symptoms, such as eating six small meals a day, avoiding certain over-the-counter products, and avoiding liquids with meals, but drinking fluids at a later time. Dr. Guletz stated that the veteran had maintained and had recently gained weight and that more extensive evaluation was not warranted. A notation from Tom Martin, M.D., dated in November 1991 states that the veteran's symptoms had remained unchanged since May 1986. He stressed that the measures suggested by Dr. Guletz would be used by the veteran, but that the veteran's dumping syndrome was likely to remain unchanged. In determining the appropriate evaluation for the veteran's disability, it is noteworthy that in cases in which a disability has been rated at a particular level for five years or more, reduction of the evaluation requires special analysis. Brown v. Brown, 5 Vet.App. 413 (1993); 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344(a) state that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a). It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of the general examination and the entire case history. Id. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Id. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Id. Clinically, physical examinations subsequent to service have been essentially unremarkable, and generally, findings on upper gastrointestinal series have been consistently limited to the appearance of peri-intestinal adhesions and, as described in 1991, ectasis of the proximal loops of the jejunum reflecting long-standing process with rapid gastric emptying. The August 1991 upper gastrointestinal series report noted that the veteran's stoma was well-functioning, without evidence of ulcer disease or other abnormality. The veteran underwent a subsequent VA examination in September 1992, at which time his history of gastrointestinal disability was reviewed. He complained of the occurrence of loose to watery stools two to four times daily, gaseous stomach, and nausea on eating sweets, and reported that he became "[j]ittery sometimes" which was relieved by food. Physical examination showed the abdomen to be soft with no hepatosplenomegaly and no masses. Some tenderness on the epigastrium on pressure was found. The veteran's height was not recorded and he weighed 172 pounds; his maximum weight during the past year was 177 pounds. It was determined that the veteran was not anemic. He reported that he experienced vomiting, but "not a lot," and noted that recurrent hematemesis or melena was absent. Pain in the epigastric region was found on examination; the veteran reported that it did not occur on a regular basis and he was unable to identify the number of episodes per year. An upper gastrointestinal series revealed no evidence of ulcer disease. The reviewing radiologist emphasized that a duodenal ulcer cannot occur subsequent to a Billroth II procedure. The diagnoses were status-post bleeding duodenal ulcers, by history; status-post Billroth's II gastrojejunostomy with subtotal gastrectomy and vagotomy without present evidence of ulcer disease; and dumping syndrome. The clinical picture shown by the record reflects that the veteran's postgastrectomy syndrome is still manifested by mild circulatory symptoms after meals and diarrhea, but no weight loss. He reports a mild dumping syndrome (which is consistent with upper GI series findings of ectasis of the proximal loops of the jejunum, reflecting long-standing process with rapid gastric emptying. He has 2-5 loose, watery stools daily. Although he does not now show weight loss, he must eat frequent small meals, avoid fluids with meals, and take over-the-counter medications regularly to control his symptoms. It is our opinion that this is a clinical picture of moderate postgastrectomy syndrome which meets the above-cited criteria for a 40 percent rating for postgastrectomy syndrome and that the absence of weight loss is not a bar to a 40 percent rating. Hence, the reduction in the rating to 20 percent was inconsistent with the medical evidence; and restoration of a 40 percent rating is warranted. Addressing next the question of whether a rating in excess of 40 percent is warranted, we note that, although the veteran complained of vomiting on the most recent VA examination, he indicated it was infrequent. Regular hypoglycemic symptoms were not reported. There is no weight loss, malnutrition, or anemia. Consequently, most of the criteria for a 60 percent rating for postgastrectomy syndrome are unmet; the disorder may not reasonably be characterized as severe, and a rating in excess of 40 percent is not warranted. We have also considered all other pertinent provisions of 38 C.F.R. Parts 3 and 4. In particular, we find that an extraschedular rating to exceed 40 percent under 38 C.F.R. § 3.321 is not warranted. The veteran's postgastrectomy syndrome has not recently required hospitalization or caused marked interference with employment not encompassed by the current rating, factors which would render application of the regular schedular criteria impractical. ORDER Restoration of a 40 percent rating for postgastrectomy syndrome is granted; a rating in excess of 40 percent is denied. GEORGE R. SENYK Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.